
<^ V SENATOR FROM PENNSYLVANIA. 

b , •% 



SPEECH 


OF 

y 



IN THE 


SENATE OF THE UNITED STATES, 


MONDAY AND TUESDAY- FEBRUARY 26 AND 27, 1900. 


4115 


W A SITING T O N. 
I 900. 









• ✓ ’ 












\ 





p.’ 

Cong*. Record Off®! 

1 VJ 01 






























o 


SPEECH 

OF 

HON. THOMAS B. TURLEY. 


Monday , February 26, 1900. 

The Senate having under consideration the resolution reported from the 
Committee on Privileges and Elections declaring that Hon. Matthew S. Quay 
is not entitled to a seat as Senator from the State of Pennsylvania— 

Mr. TURLEY said: 

Mr. President: Having joined with the majority of the Com¬ 
mittee on Privileges and Elections in reporting this resolution and 
recommending its passage, it is proper that I should give to some 
extent the views which actuated' us in our action. 

It is a question which in its general aspect has been frequently 
before the Senate. I do not think that any case exactly like this 
has ever been before the Senate. Tfu*re was one somewhat simi¬ 
lar to it, but not exactly on all fours with it, one that I will notice 
as I proceed. 

Although the facts have been stated to the Senate, yet. in order 
to have my remarks understood, I will again lay them before the 
Senate, premising that there is no dispute as to the following facts: 

Prior to March 3,1899, Mr. Quay was a Senator in Congress from 
the State of Pennsylvania. His term of office, to which he had 
been elected by the legislature of Pennsylvania, expired by efflux 
of time on the 3d day of March, 1899. The legislature of Pennsyl¬ 
vania convened in regular session on the first Tuesday in January, 
1899. On Tuesday, January 17, 1899, it began balloting for the 
purpose of selecting some one to succeed Mr. Quay and fill the 
vacancy which would occur on the 3d day of March, 1899. Daily 
ballots were taken in obedience to the provisions of the act of 
Congress of July 25, 1866, and of the Pennsylvania statute of Jan¬ 
uary 11,1867, from that date until April 19,1899. The legislature 
adjourned April 20 without effecting an election. Thereafter, on 
April 21, 1899, the governor of Pennsylvania appointed Mr. Quay 
to represent the State of Pennsylvania in this body until the next 
meeting of the legislature. 

It will thus be seen that the vacancy, which the governor of 
Pennsylvania has here attempted to provide for by a temporary 
appointment, was one which was foreseen, one which was caused 
by the expiration of a prior term, one which occurred while the 
legislature of Pennsylvania was in session, and one which that 
legislature had an opportunity of filling before it occurred, and 
also after it occurred, in the interim between the date of the 
occurrence and the appointment by the governor. 

Now, it would seem, Mr. President, from a statement of those 
facts, that if there ever was a case in which the governor of the 
State was, under the provisions of the Constitution, without 
4115 3 



4 


power to make a temporary appointment to this body, this is the 
case. It is in the teeth of every provision of the Constitution 
bearing on the subject. The vacancy occurred while the legisla¬ 
ture was in session, not during a recess of the legislature. The 
legislature remained in session nearly two months, taking daily 
ballots to fill the vacancy. The vacancy was one which was fore¬ 
seen, which happened by the expiration of a regular term, which 
did not occur either by death, resignation, or any accident. 

1 intend first, as briefly as I can, to take the provision of the 
Constitution bearing upon this subject and to construe it as we 
would any ordinary instrument, any statute, or any provision of 
law. Then I will take the history of that provision and construe 
it in the light of the facts surrounding the convention by which 
it was adopted; and the conclusion, it seems to me, will be the 
same in both cases. Finally, I shall notice the precedent which 
the Senate has estaldished in cases like this. 

It has always seemed to me that in construing statutes and con¬ 
stitutions the safest rule to follow is the one which requires us to 
give to the words used their ordinary and usual meaning, and 
why? Because constitutions, laws, and statutes are passed for the 
mass of the people, for the ordinary people, and they ought to be 
clothed in language so plain and simple that the ordinary man 
may understand them upon reading them. 

I think, therefore, that when courts pass upon statutes and con¬ 
stitutions, and when a body like this passes upon statutes and 
constitutions, they ought, if possible, to give that meaning to the 
words used which is given to these words by the ordinary mass of 
the people who are to be governed by the laws and constitutions. 

Now, when we come to the clause of the Constitution bearing 
upon this subject, we find it divides itself into two branches. The 
first is that— 

The Senate of the United States shall be composed of two Senators from 
each State, chosen by the legislature thereof, for six years; and each Senator 
shall have one vote. 

Now. giving to these words their ordinary meaning, what is 
the paramount and manifest intention of this phrase of the Con¬ 
stitution? It is, first, to have the Senators chosen by the legisla¬ 
tures of the States. The legislatures are made the bodies to select 
the Senators to represent the States in this body. Another para¬ 
mount intention was to make the representation of the States 
equal in the Senate. Each State was to have two Senators, and 
each Senator one vote. The men who were framing the Consti¬ 
tution were framing a republican form of government. 

Nowhere through the Constitution do we find, except in this 
one instance, power given to an executive under any circum¬ 
stances to fill a vacancy in a legislative body. Indeed, such power 
is, in its elements and essence, contrary to that great provision of 
our Constitution which says that the executive, judicial, and leg¬ 
islative departments shall be independent of each other. So it is 
that in forming this body, the idea being to give the States equal 
representation, the power to fill seats in this body was vested in 
the legislatures of the States, which are chosen by the people of 
the States. 

Now, take this clause and let us see how it operates. I want to 
say here on this point that I agree fully with the doctrine that the 
intention was to keep the Senate full, and I agree fully with what 
4115 


5 

was said by the Senator from Virginia [Mr. Daniel] in his address 
here on Friday, when he said: 

And in construing it— 

Referring to this clause of the Constitution— 

I start with this general proposition—that there can exist no vacancy in any 
office in the United States at anytime, and no vacancy in the Senate of the 
United States which can not be instantly filled, however that vacancy may 
have arisen. 

I agree with the general proposition. The word “ instantly ” 
as used there probably is not correct, but I do agree with the idea 
and the proposition that it was the intention of the framers of 
the Constitution to keep the Senate full. But how was it to be 
kept full? That is the question now before us. We all agree on 
the intent, what was to be accomplished, but the method by 
which the Senate is to be kept full is the question. 

Take this first clause. Under the operations of the first clause, 
which I have just read, there never could be a vacancy in a regu¬ 
lar Senatorial term which expired by limitation, except in the one 
single case of' the man who was selected by the legislature refus¬ 
ing to accept, or, in the other case, of his dying before his qualifi¬ 
cation. Leaving those two out of the way for the moment—I shall 
return to them directly—in every other case under the operations 
of this first clause it is impossible that there should be a vacancy 
in the beginning of a regular term of office in this body if the 
legislature does its duty. 

When the Constitution was passed the legislatures of the States 
met more frequently even than they do now. I think from the 
debates on the Constitution that the longest period between ses¬ 
sions of a legislature at that time was one year. So, under this 
provision, there would always be a legislature in existence before 
the beginning of a regular term, which could fill that term; and 
hence I say that if the legislature did its duty there never could 
be a vacancy in the beginning of a regular term of a Senator in 
this body. 

I want to say further, Mr. President, and I submit it to my 
brother Senators, that in framing the Constitution its authors 
never contemplated a case where the citizens would fail to per¬ 
form their political duties, or where State legislatures would de- 
liberatety fail to perform the duties they are sworn to perform. 
That was a contingency which the framers of the Constitution 
never intended to provide against. 

Indeed, it is a contingency which, under our system of govern¬ 
ment, it is impossible to provide against, for whenever legislatures 
fail to perform the duties for which they are chosen and the 
duties which are devolved upon them and the duties which they 
are sworn to perform, then the fabric of our Government goes to 
pieces. It is the very foundation upon which the whole system 
is built, that the people themselves will be faithful to their politi¬ 
cal duties, that they will watch and preserve their political rights, 
and that the legislatures of the States will be equally faithful in 
the performance of their duty. 

Hence it was not intended by the framers of the Constitution 
to deliberately make a provision that if a legislature, which is se¬ 
lected by the people of a State to perform these duties and to 
choose its Senators to represent that State in this body, deliber¬ 
ately fails to perform its duty, then somebody else shall perform 
it. In other words, the whole scheme must necessarily rest for 
4115 


6 

its safety and perpetuity upon the idea that these duties will be 
performed. 

Far better would it be for the safety of the Republic to estab¬ 
lish the doctrine firmly and forever that if the legislature of a 
State willfully and deliberately fails to perform the duty of select¬ 
ing Senators to represent that State in this body, then that the 
State itself shall go unrepresented until the people choose repre¬ 
sentatives who will perform the duty. 

Mr. STEWART. Will the Senator allow me to call his atten¬ 
tion to section 4 of Article I? 

The PRESIDENT pro tempore. Does the Senator from Ten¬ 
nessee yield to the Senator from Nevada? 

Mr. TURLEY. Certainly. 

Mr. STEWART. The provision I am about to read is said by 
contemporaneous writers to have been placed in the Constitution 
under the apprehension that the States might not do their duty 
in that respect: 

The times, places, and manner of holding elections for Senators and Rep¬ 
resentatives shall be prescribed in each State by the legislature thereof; but 
the Congress may at any time, by law, make or alter such regulations, ex¬ 
cept as to the places of choosing Senators. 

It was stated in the debates that this was put in to prevent a 
State from failing to provide for electing members of the legis¬ 
lature Some of them had already shown a spirit of that kind. 
Inasmuch as that would be a little in conflict with what the Sen¬ 
ator was saying, I thought it was well to call his attention to it. 

Mr. TURLEY. I do not see how it would accomplish the ob¬ 
ject, if that was the object. It gives to Congress the power to fix 
the times and places of holding the election. They can not fix 
the place, but they can fix the time and manner, like we have 
done in the act of 186b. But how does that force a legislature to 
do its duty? 

Mr. STEWART. Not the legislature, but Congress. 

Mr. TURLEY. How does it force the State to do its duty? 
How does the fact that Congress says a certain legislature shall 
be the one to elect the Senators force that legislature to do it? 

Mr. STEWART. If the legislature does not do it- 

The PRESIDENT pro tempore. Does the Senator from Ten¬ 
nessee yield to the Senator from Nevada? 

Mr. TURLEY. Y T es, sir. 

Mr. STEWART. It requires Congress to do it. If the legis¬ 
lature fails, Congress may provide for the election. That was put 
in on the ground that they might fail to do their duty, as it was 
shown by the debates. 

Mr. TURLEY. Now, Mr. President, I can answer that. I am 
glad to have these interruptions. In the first place, under the 
clause of the Constitution which I have just read, there would 
always be a legislature in existence to perform this duty. In other 
words, the only way it could be avoided would be by the legis¬ 
lature deliberately refusing to perform the duty, or else by the peo¬ 
ple of the State failing to elect a legislature. 

Only those two kinds of vacancies could arise under this clause, 
without the other one being in there, that the legislature abso¬ 
lutely refused to perform the duty, or declined to do it, or failed 
to do it, or that the people of the States failed to elect a legisla¬ 
ture. Giving Congress the power to fix the time and the manner, 
but not the place, does not compel the people to elect the legisla¬ 
ture, nor does it compel the legislature, which is elected and in 
4115 



7 


existence at the time, and which, under the act of Congress, ought 
to perform the duty, to perform it. We are under that just 
where we would be under this, if the people or the legislature de¬ 
clined to perform the duty. 

It is impossible on our theory of government to coerce the people 
or to coerce legislatures in the performance of such great sover¬ 
eign duties. There is no power to coerce them, because the people 
are themselves the sovereigns, and the legislatures in these mat¬ 
ters are the constituencies of this body, and if they deliberately 
fail in this matter then it is a case where the system itself breaks 
down. 

So I say it is that under this provision of the Constitution, wisely 
framed and worded, a scheme was given to the people of this 
country by which every Senatorial termcouid be filled at its com¬ 
mencement, and it could only be by neglect or failure of duty that 
it was not done. 

Now, let us go a little further and see where this left the framers 
of the Constitution. These contingencies arose, then, that a Sen¬ 
ator, after being elected, of course, might die; he might resign; 
he might be expelled; and at some time the contingency might 
arise that after he was regularly elected and chosen by the legis¬ 
lature he might decline to take the office, or he might die before 
he was sworn in. Here were uncertain things which might occur, 
and which would have to be provided for, or else the provision 
giving the States equal representation in the Senate would be vio¬ 
lated. 

Now, mark them. It was not the case of a vacancy in a regular 
term at its beginning, because that was fully provided for under 
the provision saying that the legislature should fill the regular 
term. But it was a case of death, of resignation, of expulsion, of 
refusal to serve—all matters which could not be provided for under 
the first clause. 

Mr. BURROWS. Something happening to the incumbent of 
the office. 

Mr. TURLEY. Something pertaining directly to the incumbent, 
something rendering him, either by his own act or by some act out¬ 
side of him, incapable of filling the office. Hence it was then that 
this second clause was provided, and that is as follows: 

And if vacancies happen by resignation, or otherwise, during the recess of 
the legislature of any State, the executive thereof may make temporary ap¬ 
pointments until the next meeting of the legislature, which shall then fill such 
vacancies. 

Now, giving these words their ordinary meaning, just as ninety- 
nine men out of every hundred that you meet in this country, on 
the streets or on the trains or in your houses, would give them, 
the vacancy must occur during a recess of the legislature, be¬ 
cause if it occurred while the legislature was in session then the 
body which has the right to fill these places would have the op¬ 
portunity to supply the vacancy. But it must be during a recess, 
when the legislature could not fill it. I will notice as I go on, 
as I believe it must have been in the minds of the framers of the 
Constitution, though some of the cases have departed from that 
view, that it must have been a vacancy occurring by some acci¬ 
dent, something pertaining to the individual holding the office. 

But now what power is given to the governor? It is not to fill 
the place. The vacancy, when it once occurs, is the same vacancy 
until it is filled. If any Senator here who is in for a six-years’ 
term dies to-morrow, his legislature not being in session, and the 
4115 


8 


legislature meets thereafter and fails to fill his place and adjourns, 
the vacancy is the same vacancy which occurred or happened at 
his death. That is the vacancy that the power is given to the gov¬ 
ernor to temporarily supply—not to fill, but to temporarily supply— 
and how long can he supply it? He can supply it until the next 
meeting of the legislature, not as long as it exists. 

Can language be plainer than this? He can supply it not as 
long as it continues or exists, but he has a limited, special power 
to supply it until the next meeting of the legislature, thus show¬ 
ing again that the framers of the Constitution intended that the 
legislature alone should fill these vacancies, and that the governor 
should only act during that temporary and short period when the 
legislature had no opportunity to act. 

It is contended on the other side that as long as the vacancy 
lasts, no matter how many legislatures may have met and ad¬ 
journed without filling it, the governor may appoint and reap¬ 
point and appoint again, and that under certain exigencies or 
accidents of the case he might keep his appointee in this Senate 
for nearly a full term of six years. How easy it would have been 
to have said that if the framers of the Constitution had so intended. 
Suppose the clause had read thus: 

If vacancies happen by resignation or otherwise during a recess of the leg¬ 
islature of any State, the executive thereof may make temporary appoint¬ 
ments until the vacancy is filled by the legislature. 

If that language had been used, the governor would have had 
the power to supply it by appointment until the legislature finally 
filled it. The language is simple, plain, explicit; and yet, instead 
of using such language, the framers of the Constitution deliber¬ 
ately used language which conveys exactly the opposite meaning. 
Instead of giving a general power to fill the vacancy as long as it 
exists and until the legislature fills it, it limits the power until the 
next meeting of the legislature. 

Let me illustrate by a case, Mr. President. Suppose a merchant 
in this country intends taking a long voyage, a tour around the 
world, or any other lengthy journey, and he has a general agent 
to represent him until his return. Fearing that that agent may 
die or resign or that some accident may happen to him and he 
may become incapable of performing his duty, he gives a power 
of attorney to a third man authorizing him in case of the death, 
resignation, or incapacity of this agent to then appoint another 
agent in his stead, temporarily, until the merchant's return to this 
country and his resumption of the charge of his business. 

Suppose he returned and took charge of his business, and then 
afterwards went away again. Would anybody contend that this 
power of attorney lasted and operated through the second voyage 
or the second journey? No; because the merchant would have re¬ 
turned and resumed charge of his business, and the whole matter 
would have been just as here. Whenever the legislature returns, 
as the body which under this clause of the Constitution has the 
full jurisdiction and the full power to act in these matters—when 
that body meets, then the power of the governor at once ceases. 

I wish to refer briefly on this question to what was said by the 
Senator from Wisconsin [Mr. Spooner] when we had the Corbett 
case under consideration. The question then which was being 
debated was, What would you do in a case where the governor 
had made his appointment rightfully, and the legislature meets, 
tries to elect a Senator, fails to elect one, and adjourns? Has the 
governor the power to appoint again? Now, this case is even 
4115 


9 


stronger than that, because this has the element in it of a vacancy 
occurring while the legislature was in session. 

But, putting that aside, at any rate, after this vacancy occurred 
the legislature of Pennsylvania was in session for some two months, 
from March until nearly the end of April, and was making daily 
efforts to fill this seat. Therefore it comes directly within the 
principle of the case of where a governor has made an appoint¬ 
ment. to fill a vacancy which occurred during the recess of the 
legislature and the legislature thereafter has met and failed to fill 
the place. The Senator from Wisconsin, in discussing these ques¬ 
tions and speaking on the Johns case, said: 

I may be wrong about it, but it has seemed to me that there is ground for 
fair distinction as to the power of temporary appointment between the case 
where the legislature meets and fails to fill an anticipated vacancy and where 
the legislature meets, a vacancy then being in existence, and adjourns with¬ 
out filling it. The Constitution says, in a general way of course, that Sena¬ 
tors shall be chosen by the legislature. It does not say by what legislature 
or in terms when it shall be done. 

Then, further on, he said: 

It may very well be a different thing if when the legislature meets the 
vacancy exists. There is a mandate laid by the Constitution upon that legis¬ 
lature not simply to choose a Senator, but as to the time when it shall be 
done, and it is peculiar in that respect. The governor can make temporary 
appointment “until the next meeting of the legislature, which shall then fill 
such vacancy.” Is there no ground for the distinction? 

Further on the Senator said: 

What ground the Kensey Johns case went on I do not know, except that it 
was the case that when the legislature met the vacancy existed. The gov¬ 
ernor had never appointed at all: and there were great constitutional law¬ 
yers who argued for this construction of the Constitution, which would de¬ 
cide the Johns case, if it wei-e a correct contention—and there was much to 
sustain it—that the word “until ’’ used in that clause of the Constitution does 
not limit the duration of the term of the appointee of the governor, but lim¬ 
its the governor’s power of appointment. 

Further on, when a question was put directly to him, he said: 

Yes, it is proper, but purely academic, for in my judgment it is not in¬ 
volved in this ca ;e. My own impression has been that there is no authority in 
the Constitution for the governor to make a number of appointments to fill 
a continuing vacancy. If my term should become vacant by my death to¬ 
morrow, in the recess of the legislature, the governor, of course, would have 
a right to appoint my successor, and he might come here and be sworn in and 
die in a month. I should think in that case the governor would have the 
pow r er undoubtedly to make another appointment. 

All of which is true; but his judgment was at that time that 
there was no authority in the Constitution for the governor to 
make a number of appointments for filling a continuing vacancy. 
Of course, when a new Senator is appointed or elected by the 
legislature, and dies, a new vacancy occurs upon which the clause 
of the Constitution operates just as it did upon the original vacancy. 

Mr. President. I am going to discuss this somewhat in detail, 
and I want to take up the word “happen,” about which there has 
been so much controversy in these debates—“if a vacancy hap¬ 
pen.” What does “ happen ” mean? Again I revert to the rule 
that we ought to give it the meaning which the mass of the people 
give to it; and I think every Senator will agree with me that in 
the common, ordinary, everyday meaning of the word, as used by 
the masses of the people, it has the idea of accident, something 
unforeseen. casual ty. Of course it may be used in a different sense, 
and may have a different meaning, according to its use; but all 
these other meanings are secondary. They are none of them its 
primary meaning as it is ordinarily used. 

4115 


10 


As 1 said, if you were to start out and ask every man you met 
indiscriminately what his idea was of what the word “happen’’ 
meant, he would give you in some way the idea of accident, of 
casualty. Finally, you might meet a philologist or an expert in 
construction, and he would tell you that sometimes it meant that, 
and sometimes it means just the opposite of that. He would tell 
you that a certain author a hundred years ago had used it in a 
different sense; he would tell you that it might, according to its 
context and its subject, mean a continuous condition, as the Sen¬ 
ator from Virginia said, that it might mean one thing now and 
another thing to-morrow—“all things to all men”—until when 
you left him you would be as confused and confounded as to what 
the true meaning of the word was as a lawyer would be who 
searched for a consistent, regular line of decisions in our Federal 
Reporters. But, Mr. President, as I have said, the common, ordi¬ 
nary meaning is that which I have given to it. 

Let me illustrate that a little further and thus show you how 
hard it is to use the word without its having this meaning. I am 
going now to refer to the report of the minority of the committee 
in this case, in which they seek to give it another meaning. I 
read from the minority report on page 18: 

Now, we affirm— 

Say the minority— 

with great confidence that the phrase used in the Constitution is employed in 
ordinary usage to describe events that do not depend upon chance, and to 
describe a continuing condition without reference to the time or method of 
its origin. 

If the Fourth of July happen on Sunday, the coming of Sunday and the 
coming of the Fourth of J uly, the coincidence of those two things, is the re¬ 
sult of fixed and unchangeable natural laws; and that word expresses not 
merely the beginning of the Fourth of July, or the beginning of Sunday, but 
the continued identity of the two periods of time described throughout their 
entire length. Indeed, the word "‘coincidence” is equivalent to the words 
“happening at the same time,” and is used to describe events that are not 
fortuitous. 

That is literally true; and yet when you look at it in another 
light, you will see that, as used here, the idea of chance or acci¬ 
dent as it is accepted by the common mind prevails. It is true 
that the Fourth of July and Sunday happen on the same day ac¬ 
cording to fixed laws; but those laws are not kept in mind by the 
mass of the people; and it is in the ordinary acceptation of ordi¬ 
nary people, rather than in this sense of an accident to them, that 
these two things happen on the same day. 

Coincidences are unusual things. Not but what, of course, they 
are governed by law, as everything else is; but in ordinary par¬ 
lance, in ordinary acceptance, that is the way they are usually 
understood. They are unusual things, accidental things, things 
which do not usually occur; and if you take the illustrations on 
the other side, you will find the same sense runs through them all. 

I may as well admit here that there is nothing which happens 
by chance. Everything is governed by fixed laws. But we do not 
know what those laws are, and hence to us it is chance. But if 
we bring it down to abstract principles, then there could be no 
such thing as ‘ ‘ happen ” in the sense of chance. That meaning of 
the word is eliminated from the subject if we treat it according 
to abstract law. But this Constitution was not prepared for scien¬ 
tists or philologists, but for people construing language according 
to stated rules; it was prepared to be plainly read and understood 
by e~ery man who was to be governed by it. 

4115 


11 


But let me go a little further. The minority say that the word 
“happen” is synonymous with “occur;” “to come to pass;” “to 
take place.” I agree to all of that; I accept those definitions. Let 
us see what those synonyms, those words, mean. “Occur” has a 
good many meanings, like all other words. It means, accord ng 
to Webster’s International Dictionary, “to meet;” “to clash;” 
(2) “to go in order to meet;” “to make reply” (this being now 
obsolete); “to meet one’s eye;” “to be found or met with;” “to 
present itself;” “to offer;” “to appear;” “to happen;” “to take 
place; ” all things that occur instantly, and which generally occur 
accidentally. 

(a) “To come to pass; ” “to occur; ” as, the ceremony will not 
take place. 

(b) “To take precedence or priority.”— Addison. 

(c) “To take effect;” “ to prevail.” 

“If your doctrine takes place.”— Berkeley. 

“But none of these excuses would take place.”— Spenser. 

“To come to pass” means, by the same authority, “to happen; ” 
‘ to fall out.” 

Now, put those words in the Constitution and see if its mean¬ 
ing is changed any. Let us read it in the light of those words: 

And if vacancies occur by resignation or otherwise. 

Is that any stronger for the other side than it is as written here, 
“ if vacancies happen?” When you say “a vacancy occurs,” do 
you mean a continuous vacancy, or do you mean “ a time at 
which the vacancy takes place?” Suppose you say “if a vacancy 
takes place” or “if a vacancy comes to pass by resignation,” 
every word that you substitute for “ happen ” there means this, 
at least—it means to indicate the point of time at which the 
vacancy begins. “Occur,” “come to pass,” “happen,” “take 
effect ”—all these indicate the point of time at which the vacancy 
. begins. 

A vacancy does not occur and recur every minute and ev r ery 
second as long as it lasts. It occurs once, and then, to the ordi¬ 
nary mind, it continues to exist until it is filled; but it occurs at 
the time it begins, just as death occurs, and then the state of 
being dead, the state of death, continues. Birth is the beginning 
of life, and occur is the time at which the vacancy begins. This 
analogy fits in with the meaning and intention of the framers of 
the Constitution. They meant a vacancy which began when a 
legislature was not in session, because if the legislature was in 
session, then, under the Constitution, it was the body whose sworn 
duty it was to act, and the body which alone had the power to 
act. Therefore, no matter what word you substitute for the word 
“ happen,” you come back to it, that it means the point of time 
at which the vacancy takes place, or occurs, or comes to pass. 
That is, in my mind, the only reasonable explanation which can 
be given to it. 

I now pass on, and I come to the word “otherwise.” I want to 
discuss that briefly, because the Senator from Virginia [Mr. 
Daniel] has stated, or rather his argument is, that it is prepos¬ 
terous to give to the word “otherwise” the meaning which we 
give to it in this phrase. The language is, “if vacancies happen 
by resignation or otherwise.” We say that under the ordinary 
rules of construction which prevail in such cases the word “ other¬ 
wise” is limited by the word “resignation;” that is, a general 
4115 


12 


word following specific words is limited by the specific words. 
The Senator from Virginia said, and other Senators say, “ other¬ 
wise” means “in a totally different manner.” I agree that it 
means in a different manner; it means in a different way. 

But what is the question here? The question in construing this 
word is, what is to cause the vacancy which can be filled by the 
governor? The Constitution says ‘ ‘ a vacancy caused by resigna¬ 
tion.” Now, a vacancy caused by death is a vacancy caused in a 
different manner, a wholly different manner. A vacancy caused 
by expulsion is a vacancy caused in still another different man¬ 
ner, wholly different from the other; but a vacancy caused by a 
refusal to accept is a vacancy caused in still another manner. 

Now, what we say is that the word “ otherwise ” should be con¬ 
strued, according to all the rules of construction, to mean causes 
of the same general character, causes of like character, not iden¬ 
tical causes—different causes, caused in a different way, caused in 
a different manner—but still causes of like general character. 

Let me see what the Supreme Court of the United States has 
said on this question. It is referred to in the minority report of 
the Lee Mantle case and several other cases. The general rule is 
laid down, as follows: 

A general word which follows particular and specific- words of the same 
nature as itself takes its meaning from them and is presumed to be restricted 
to the same genus as those words; or, in other words, as comprehending 
only things of the same kind as.those designated by them, unless, of course, 
there is something to show that a wider sense was intended. 

Now, in the case in 18th Howard, Ham vs. The State of Missouri, 
the facts were these: 

The plaintiff in error was indicted for a trespass on land belonging to the 
State of Missouri, which had been granted in 1820 to that State for school 
purposes, being every sixteenth section of certain boundaries of land. Ham 
pleaded that by another act, in 1811 , the Congress of the United States had 
reserved and set apart from entry and sale certain lands against which there 
were outstanding claims until said claims had been settled. The terms of 
the grant to the State of Missouri were of every sixteenth section, “'unless 
the same had been sold or otherwise disposed of.” 

Ham’s counsel contended that the act of 1811, reserving and 
setting apart from entry and sale certain of these lands against 
which there were outstanding claims, until said claims had been 
settled was “ otherwise disposing of ” them: and manifestly it was, 
taking the words “otherwise disposed of ” in their broad sense, 
just as here “otherwise,” unless limited by the word “resigna¬ 
tion,” would include every kind of vacancy. So “ otherwise dis¬ 
posed of ’’would include every imaginable disposition, temporary, 
permanent, in fee, or any kind of disposition. Yet the Supreme 
Court when they construed that said “ otherwise ” was limited by 
“ sale,” and it could only be a disposition which was of the same 
character and nature as a “sale.” 

I pass from that case. In another case, the Thames Insurance 
Company vs. Hamilton, Chancellor Hallsbury says: 

If understood in their widest sense the words are wide enough to include 
the injury; but two rules, now fairly established as a part of our law, may be 
considered as limiting these words. One is that words, however general, 
may be limited with reference to the subject-matter in relation to which 
they are used. The other is that general words may be restricted to the 
same genus as the specific words that precede them. (See Sutherland on 
Statutory Construction, page 357.) 

This case was an action upon a policy providing for insurance 
against all the perils of the sea, and of “all other perils, losses, 
4115 


13 


and misfortunes that have or shall come to tue hurt, detriment, 
or damage of the aforesaid subject-matter of this insurance or any 
part thereof. ” The damage alleged was to a donkey engine, which 
was used in pumping water into the main boiler, and which burst, 
owing to a valve being closed which ought to have been open. 

The holder of the policy contended that it came in under the 
words “other perils,” which undoubtedly it did, because the 
language was as broad as it could be if we look alone to the words 
“ or other perils, losses, or misfortunes.” Here was the destruc¬ 
tion of a donkey-engine by the bursting of a valve, and the policy 
was against perils of the sea. Although the language “ or other 
perils ” was used, yet it was limited to perils of like character, the 
perils of the sea. Can cases be stronger? 

Just so we said here, “otherwise” should be limited to causes 
of a like character, of the same genus, as resignation; and it fits 
in again with the whole scheme, it fits in again with the plan, be¬ 
cause there was no need to provide against any other kind of a 
vacancy than that caused by an accident of that sort. A vacancy 
caused by the regular efflux of time, which could be foreseen, was 
provided for in the first part of the clause, and it was only those 
vacancies which were caused by accident, which could not be 
foreseen, that it was necessary to provide against; and to avoid 
the necessity of using a great number of words, one word indica¬ 
ting the general genus or class was used, and then “otherwise” 
included every other cause of like character and of like kind. 

Mr. President, 1 come now to a point I wish to touch upon 
briefly, simply wishing to say that if we construe this clause of 
the Constitution—referring again to what the Senator from Vir¬ 
ginia has said, and to what we all agree, that the intent was to 
keep the Senate always full—I say that under our construction a 
plain, simple, consistent, and adequate means of keeping the Sen¬ 
ate full is supplied. It can be kept full at all times, when vacan¬ 
cies occur by efflux of time, by the election by the legislature; 
when they occur accidentally, by the appointment of the gover¬ 
nor until the legislature meets; and thus the Senate is always full. 

It is as easy to keep it full that way as it is under the other doc¬ 
trine. If the idea had been, fellow-Senators, that the Senate must 
at every instant of time be kept full, would language like this 
have been used? Let us see what all admit and what the framers 
doubtless saw. Many of our legislatures remain in session for 
months. In many States the habit has grown up of limiting the 
time of their session, but when this Constitution was framed and 
for years afterwards and now in many States the sessions are un¬ 
limited. 

Take the case of the State of Pennsylvania. There the legislature 
met in January and it could hold sessions as long as it pleased— 
I believe there is no limitation on the sessions of the legislature 
of that State. It was in session during January, February, 
March, and April—four months. During two months of this time 
there was a vacancy in the Senate which, it is admitted, nobody 
but that legislature could then fill. So, under all constructions and 
any construction that is supported on this floor, here was a two 
months’ period, and if the legislature had run longer, four, five, or 
six months, there would have been that length of period, during 
which there was no way of filling this vacancy as long as the 
legislature remained divided in its opinions and failed to perform 
its duty. 

4115 




14 


In 1898 the policy of this Government was changed in less than 
two months. War was declared and a greater portion of it was 
successfully fought in less than four months. How many great 
measures were passed in that short time. When the power is 
given to the governor to appoint, it is not said that he must ap¬ 
point; it is not said that the Senate must always be full; but it is 
said he “may appoint; ” it is left to the governor to exercise his 
discretion; and where is the paramount, controlling intent which 
would override every other intent and every other motive of the 
framers of the Constitution, that the Senate should always and at 
all tunes, at every instant, have its full quota of Senators? 

Necessarily there must be times when there are vacancies, and 
the language is simply to give the privilege to the governors, on 
behalf of their States, to fill those temporary vacancies. If a gov¬ 
ernor does not choose to fill such a vacancy, no man can say he has 
violated his trust. It is a discretion which he settles with his own 
conscience under his oath of office, but the legislature that fails 
to perform this duty does, in my judgment, violate its oath of 
office. There is the difference and distinction between the two. 

Mr. President, I am taking up more time than I intended. I 
want to advert briefly now to the historical side of this question. 
When the Convention met there were several plans proposed for 
selecting Senators: two, differing in detail, contemplated the se¬ 
lection by the House of Representatives, one contemplated an 
election by the people, one by electors chosen by the people, two 
for election by the legislature, and one for appointment by the 
President out of a certain number nominated by the legislature. 
The plan for the legislatures to elect was adopted with the equal 
State representation. The matter was then referred to the com¬ 
mittee on detail. 

Now, notice the report as it came from the committee on detail.. 
As it came from the committee on detail the clause read thus: 

The Senate of the United States shall be chosen by the legislatures of the 
several States. Each legislature shall choose two members. Vacancies may 
be supplied by the executive until the next meeting of the legislature. Each 
member shall have one vote. 

It is to be noticed, Mr. President, that under that language as 
there reported by the committee on detail this appointment would 
have been good. 

Mr. HOAR. Mr. President- 

The PRESIDENT pro tempore. Does the Senator from Ten¬ 
nessee yield to the Senator from Massachusetts? 

Mr. TURLEY. Certainly. 

Mr. HOAR. The Senator is relating history. Is it not also 
true that that language had passed the entire body unquestioned 
before it went to the committee on detail in that form? In other 
words, did not the Constitutional Convention once vote for lan¬ 
guage which the Senator now concedes would have authorized 
this appointment; and then did not they change that languagefor 
the sole reason that they wanted to remove this doubt about the 
right to resign? 

Mr. TURLEY. Well, 1 am not as familiar with the details of 
that as is the Senator from Massachusetts, and I have not the 
book here. As I read the Constitution, the convention selected 
the method of having the Senators chosen by the legislatures and 
equal State representation, and then the matter went to the com¬ 
mittee on detail. 

4115 


% 



15 


Mr. HOAR. The Senator will pardon me. I think he will find 
this stated in the minority report, if he will look at it. The his¬ 
tory of this thing is this: The convention enacted, taking up sec¬ 
tion by section, certain arrangements, among others this arrange¬ 
ment: They shall be chosen by the legislature: vacancies shall be 
filled. That was everybody's opinion. Then, having got through 
the Constitution and passed their opinion on every separate ar¬ 
rangement, they sent it to a committee on detail to arrange the 
style and any detail which might be necessary to carry out their 
purpose, the purpose which my honorable friend concedes was to 
let the governor appoint if the legislature could not fill avacancjb 

At least, that is what we claim. Then Mr. Madison, who re¬ 
ports the thing himself, so you are sure you have a correct report 
of the purpose, got up and said what I shall read. Mr. Ellsworth 
first said in the discussion how important it was that the Senate 
should always be full, and Mr. Madison got up and said, “if you 
leave this as it is, we shall have the English question on us of the 
right of a Senator to resign. Therefore I move to put in ihe 
words, ‘which are in now,’ in order to make it clear that a Sen¬ 
ator may resign or decline. ’ That was the sole reason for making 
any change. The whole convention having once said unani¬ 
mously, “If there is a vacancy under any circumstances whatever, 
the governor may fill it,” Mr. Madison says, “Let us make a 
change in the language to show that a man can resign.” 

Mr. PENROSE. I happen to have Taft’s Election Cases here. 
I should like to call the Senator's attention to the exact reading of 
the original article as reported from the committee on detail. 
Section 1 of Article V reads as follows: 

The Senate of the United States shall be chosen by the legislatures of the 
several States. Each legislature shall choose two members. Vacancies may 
be supplied by the executive until the next meeting of the legislature. Each 
member shall have one vote. 

There is no qualification or limitation whatever put upon the 
right of the executive. 

Mr. TURLEY. I have read that. I am going to concede, be¬ 
cause I have not carefully examined that point, that the conven¬ 
tion did at one time adopt that clause. 

Mr. BURROWS. Will the Senator from Tennessee allow me 
for one moment? 

Mr. TURLEY. Certainly. 

Mr. BURROWS. Of course that original general statement 
that the legislatures should choose Senators and that vacancies 
should be filled by the executive was simply a declaration of the 
general policy to be pursued in the framing of that provision. 
But when that general policy or declaration went to the committee 
on detail it was completely changed, and instead of saying that 
vacancies shall be supplied by the executive it was modified by 
saying that vacancies happening during the recess of the legisla¬ 
ture. 

Mr. HOAR. That was not by the committee on detail. It was 
after it came back from the committee. 

Mr. TURLEY. The committee on style. 

Mr. BURROWS. I misused the word. I should have said the 
committee on style. It said, “vacancies happening during a 
recess. ” 

Mr. HOAR. My honorable friend, if he will pardon me, is in 
error in his memory, as he will see if he will look at the record. 

4115 


16 


It was not changed in committee. It was changed, when it came 
hack, on Mr. Madison’s motion. 

Mr. BURROWS. It was changed. 

Mr. HOAR. The Senator said it was changed in committee. 

Mr. BURROWS. In the committee on detail or the committee 
on style: one or the other. 

Mr. PENROSE. I should like to inform the Senator from 
Michigan that it is a well-known and admitted fact that the com¬ 
mittee on style had no authority whatever to alter,the matter con¬ 
tained in any provision of the Constitution. The amendment was 
placed in the Constitution upon the open floor of the convention, 
and all that the committee on style did was to strike out the 
words “refusal to accept,” leaving in the words “resignation or 
otherwise” in the interest of simplicity and good English. 

Mr. HOAR. After the report of the committee on style, the 
committee having reported, and after the convention had voted 
that all vacancies should be filled by the governor, according to 
Mr. Madison’s report of his own proceedings— 

Mr. Madison, in order to prevent doubts whether resignations could be 
made by Senators or whether they could refuse to accept, moved to strike 
out the words after “vacancies” and insert the words “happening by re¬ 
fusal to accept, resignation, or otherwise.” 

Then Gouverneur Morris goes on and says: 

This is absolutely necessary. Otherwise, as members chosen into the Sen¬ 
ate are disqualified from being appointed to any office by section 9 of this ar¬ 
ticle, it would be in the power of the legislature, by appointing a man Sena¬ 
tor against his consent, to deprive the United States of his services. 

For instance, a man might be appointed to the Supreme Court 
of the United States. 

Mr. TURLEY. I understand that language of Mr. Madison 
was used after the committee on detail had reported. 

Mr. HOAR. That is what I said. 

Mr. TURLEY. And before it went to the committee on style. 

Mr. HOAR. It was made on Mr. Madison’s motion, not by the 
committee. 

Mr. TURLEY. Yes; after the section was before the conven¬ 
tion on the report of the committee on detail. 

Mr. HOAR. That is it exactly. 

Mr. TURLEY. Then Mr. Madison’s motion was adopted, and 
it went to the committee on style. 

Mr. HOAR. I will ask the Senator another question, if he will 
permit me. 

Mr. TURLEY. Certainly. 

Mr. HOAR. Does the Senator think it is credible that that 
great change, made on this avowed motive alone, was really made 
for another purpose by that convention and nobody said a word 
about it? 

Mr. TURLEY. I will answer the question. 

Mr. BEVERIDGE. May I ask the Senator from Tennessee a 
question? 

Mr. TURLEY. Certainly. 

Mr. BEVERIDGE. The Senator spoke of the language which 
might have been used under certain circumstances. Is not the 
contention of the Senator from Massachusetts correct? And if it 
is true that it was only intended to include those cases that came 
within the same class as the word “resignation,” why did they 
not say so, since there are only four enumerated by the Senator 
4115 


17 


# 


from Tennessee, and they are very brief and to the point—death, 
expulsion, resignation, and refusal to serve? Why were not those 
inserted and named specifically, as they did the word “resigna¬ 
tion,” instead of putting in the word “otherwise? ” In that con¬ 
nection is it not true—I do not remember about it, but my mem¬ 
ory is a little bit refreshed—that two or three of these cases were 
inserted by the committee, and afterwards stricken out so as to 
leave the word ‘ ‘ otherwise ” to mean in any other manner? Those 
questions simply arise in my mind, and I think they are pertinent. 

Mr. PENROSE. The Senator is correct. The word “refusal” 
was stricken out. 

Mr. BEVERIDGE. Yes. 

Mr. TURLEY. It was stricken out by the committee on style. 

Mr. PENROSE. I should like to ask the Senator from Tennes¬ 
see one question right here. Does he include insanity in this arbi¬ 
trary definition of the causes of vacancy included in the words 
“ resignation or otherwise?” 

Mr. TURLEY. I do. 

Mr. PENROSE. I recall reading in the Senator’s previous 
speeches that he had doubt upon that question, and I wanted to 
know whether he had progressed in his constitutional ideas about 
the matter. 

Mr. TURLEY. I will say I have progressed that far. When 
you come to the question of insanity, probably it would require 
an inquisition of lunacy. I mean that whenever, under the law 
as it exists, a Senator who held a seat in this body was properly 
and in a regular manner declared insane, then the seat would be 
vacant, just as it would by resignation or death. I will say that. 

Mr. PENROSE. I remember that the Senator expressed doubt 
on that point in his speech upon the Corbett case. I did not know 
whether he adhered to that view. 

Mr. TURLEY. I have advanced to that point, if I did then 
entertain that view. 

Mr. BURROWS. As I understand the history of this matter 
it was this—I have the authority before me: The Convention con¬ 
sidered many resolutions in relation to the formation of govern¬ 
ment and the creation of the Senate and filling a vacancy, and 
they finally referred three resolutions, Nos. 4, 11, and 22, which 
related to the organization of the Senate, to the committee 
on detail. The committee on detail made their report back to 
the Convention, in which they reported that vacancies may be sup¬ 
plied by the executive until the next meeting of the legislature. 

This report was considered by the Convention in committee of 
the whole and was amended by the Convention, so that instead of 
leaving the power with the executive to fill vacancies, it was modi¬ 
fied by the Convention so as to read: 

Vacancies happening by refusals to accept— 

Limiting the general power of filling vacancies— 

Vacancies happening by refusals to accept, resignations, or otherwise, may 
be siipplied by the legislature of the State in the representation of which such 
vacancies shall happen, or by the executive thereof until the next meeting 
of the legislature. 

The vacancy was to be filled by the legislature or the executive 
thereof until the next meeting of the legislature. That was as it 
stood when it went to the committee on detail. Then the com¬ 
mittee on style changed it to its present form. 

4115—2 


18 


Mr. BEVERIDGE. If they had left that as it was, what would 
the word “otherwise” have meant?. Suppose they had left it? 

Mr. BURROWS. I think it would mean exactly what it means 
now, namely, other like vacancies. 

Mr. TURLEY. I will answer the question of the Senator from 
Indiana, and then I will take up the matter adverted to by the 
Senator from Massachusetts, for I do think that when we consider 
this it sustains our view of this case. 

In reply to the Senator from Indiana, I can answer him better in 
the language of the Senator from Wisconsin [Mr. Spooner], who 
was asked a similar question in the Corbett case, or one of the de¬ 
bates on this question, as to why all these causes had not been 
GnuniGr8)tG(i 

Mr. BE VERIDGE. There are only four possible. 

Mr. TURLEY. You have found insanity since, which would 
make five. I do not know what might happen afterwards. 
There are a great many ways. Concede that there are but four, 
or call it five. The Constitution of the United States is remark¬ 
able for one thing, and that is for its conciseness, its brevity, and 
its comprehensiveness: and the Senator from Wisconsin, in answer 
to that question, and I think it was a good answer, said that the 
framers of the Constitution guarded against overloading it with 
repetition of like expressions. 

When it enumerated one, resignation, and then added the word 
“ otherwise,” if you apply the ordinary rule of construction, be¬ 
cause the great majority of the members of the convention were 
lawyers, and all of them educated men, who understood to a nicety 
the use of language, you will see that in the most concise and ex¬ 
plicit form they do express the idea which otherwise would have 
required two or three lines to express it. That is the answer to 
that question. 

Now I wish to come back to the question which the Senator 
from Massachusetts put to me, and I hope he will be back before 
I get through, because I want to ask him one question when I get 
through with this matter. Undoubtedly as this clause came from 
the committee on detail this appointment would have been good. 
Under this provision any vacancy could be supplied by the execu¬ 
tive. No matter when it occurred and no matter how it occurred, 
just so there was a vacancy in existence, the executive could sup¬ 
ply it until the next meeting of the legislature. What occurred? 
When that clause came up for debate in the convention in com¬ 
mittee of the whole, I believe— 

Mr. Wilson objected to vacancies in the Senate being supplied by the ex¬ 
ecutives of the States. It was unnecessary, as the legislatures will meet so 
frequently. It removes the appointment too far from the people, the execu¬ 
tives in most of the States being elected by the legislatures. As he had al¬ 
ways thought the appointment of the executive by the legislative department 
wrong, so it was still more so that the executive'should elect into the legis¬ 
lative department. 

Mr Randolph thought it necessary in order to prevent inconvenient chasms 
in the Senate. In some States the legislatures meet but once a year. As the 
Senate will have more power and consist of a smaller number than the other 
House, vacancies there will be of more consequence. The executives might 
be safely trusted, he thought, with the appointment for so short a time. 

Mr. Ellsworth. It is only said that the executive may supply vacancies. 
When the legislative meeting happens to be near, the power will not be ex¬ 
erted. As there will be but two members from a State, vacancies may be of 
great moment. 

Mr. Williamson moved to insert after “vacancies shall be supplied by the 
executives” the words “unless other provisions shall be made by the legis¬ 
lature.” Mr. Ellsworth said he “ was willing to trust the legislature or the 
4115 



19 


executive of a State, but not to give the former a discretion to refer appoint¬ 
ments for the Senate to whom they pleased.” 

Then Mr. Madison came, with the language used by the Senator 
from Massachusetts: 

Mr. Madison, in order to prevent doubts whether resignations could be 
made by Senators, or whether they could refuse to accept, moved to strike 
out the words after “vacancies” and insei’t the words “happening by re¬ 
fusals to accept, resignations, or otherwise, may be supplied by the legisla¬ 
ture of the State in the representation of which such vacancies shall happen, 
or by the executive thereof until the next meeting of the legislature.” 

It will be seen that in this whole discussion there was objection 
to the executive having this power at all, and the idea was never 
once presented in the discussion of enlarging his power, of giving 
him a general power, of giving him a power which could be exer¬ 
cised again and again and over and over, but every suggestion 
was that it was limited, that it was confined in its scope and ex¬ 
tent, and that it could only exist until the next meeting of the 
legislature. 

When Mr. Madison's amendment was adopted, how did the 
language read? After Mr. Madison’s language was adopted the 
clause read as follows: 

The Senate of the United States shall be chosen by the legislatures of the 
several States. Each legislature shall choose two members. Vacancies hap¬ 
pening by refusal to accept, resignation, or otherwise may be supplied by the 
legislature of the State in the representation of which such vacancies shall 
happen or by the executive thereof until the next meeting of the legislature. 

Now, it is curious, but under Mr. Madison’s amendment I still 
think this appointment would have been valid. Here you have 
the convention considering and acting on two clauses which gave 
quite an unlimited power of appointment to the executive. If it 
had been intended to clothe the executive with the power which is 
now claimed for him, why was not the language left as it origi¬ 
nally stood in one or the other of these clauses? Will any Senator 
answer me the question, Why was it that the convention deliber¬ 
ately, through its committee on style, adopted language which 
now stands in the Constitution and which conveys exactly the 
opposite idea upon the question from that conveyed by the clauses 
as reported by the committee on detail and as amended by Mr. 
Madison? 

It is said that the committee on style had no authority to make 
this sort of a change in the instrument, but it is to be remembered 
that when the committee on style reported the instrument back 
it was acted on by the whole convention. It was never a com¬ 
plete instrument; it was never finally adopted by the convention 
until it was put in the shape in which we find it by the commit¬ 
tee on style, and then it was adopted and signed. So it was the 
action of the whole convention in changing these words and put¬ 
ting this limitation upon the power of the exective. 

Here, under the original clauses as reported by the committee 
and as amended by Mr. Madison, I repeat, we had clauses which 
would have justified this appointment and which would give the 
governor the power to appoint, no matter when a vacancy occurred; 
but that language was deliberately changed, and his power was 
limited to vacancies which occurred during a recess of the legis¬ 
lature and was limited to the next meeting of the legislature. 
Now, why was that change made? 

The Senator from Massachusetts asked me if there could be any 
reason except that given by Mr. Madison, which was that it 
4115 


20 


was to remove doubts as to the rights of Senators and Representa¬ 
tives to resign. I have a reply to that. Let me ask two questions. 
Do Senators on the other side of this question maintain that the 
right of a Senator in this body to resign rests upon this clause of 
the Constitution? Do they maintain that if that amendment pro¬ 
posed by Mr. Madison had not been adopted in one form or the 
other a Senator could not resign from this body? 

If they do. where do they find the right of a member of the 
House of Representatives to resign? If the right to resign depends 
upon this clause of the Constitution, then the giving of it to the 
Senate is impliedly, at least, a refusal of it to the members of the 
House of Representatives, and this construction would force you 
to the position that a member of the other House could not resign. 

Mr. CARTER. I should like to respond briefly to the Senator’s 
question. The question as to why this line was inserted with 
reference to Senators and not with reference to the members of 
the House seems to admit of a clear answer. The Constitution 
was framed over a hundred years ago. It was framed in the light 
of the law as it was then understood in its application to public 
officers and members of Parliament in Great Britain. It was be¬ 
lieved by Mr. Madison—it had been believed and had grown up as 
a practice in England—that the right did not exist in a member of 
Parliament after election to resign his place. 

That rule applied to officers in minor positions as well. It was 
not proposed in the particular case that members of the Senate 
in the first instance might not resign, nor was any word spoken 
in reference to resignations in the clause to which the committee 
on detail directed its attention, to wit, vacancies may be supplied 
by the executive until the next meeting of the legislature. But 
according to Mr. Madison’s testimony, when the committee on 
style undertook to deal with that section they encountered the 
proposition whether the right would be recognized in the Federal 
Government for a Senator or a Representative, if you please, to 
resign at all. 

The recognition in one case would be tantamount to a recogni¬ 
tion in both cases. So I think it is clear that the construction 
must be in the light of conditions that existed at the time the in¬ 
strument was framed rather than in the light of a Century of 
usage which has grown up in this country and has modified the 
common law and the common usuage of England in a hundred 
different ways aside from this. 

Mr. TURLEY. I am familiar, from general reading, and espe¬ 
cially from reading the very instructive speech of the Senator from 
Wisconsin on this question in the Corbett case, with the history 
of the law in England on the right of members of Parliament to 
resign. They had to apply to be made masters of the hounds or 
of the Chiltern Hundreds, an office not consistent with being a 
member of Parliament. 

Mr. SPOONER. Steward. 

Mr. TURLEY. Steward, or whatever it is. But what I say is 
this: In the first place, the framers of the Constitution, in \ny 
judgment, were not really considering how a man could get out 
of office or how he could resign. The great question they had be¬ 
fore them was how to constitute the Senate and who it was that 
should fill these places. This expression of Mr. Madison is seized 
upon to give a totally different meaning to this clause from that 
which is imparted by the ordinary terms and words used in it. 

It is said that simply because he suggested a doubt as to the 
4115 


21 


power to resign, these words were put in, and hence it is that I 
ask the question, Do they maintain that the right of a Senator to 
resign depends on that? If they do, then I say again, in reply to 
the Senator from Montana, that if the right to resign did not ex¬ 
ist, expressly giving it to one is an implied withholding of it from 
the other on the theory of the old Latin maxim, expressio unius 
est exclusio alterius. 

Suppose an act had been especially passed saying that Senators 
might resign, or a special clause had been put in another part of 
the Constitution saying that the right of Senators to resign is 
hereby given them; would that give it to the members of the 
House of Representatives? On the contrary, by every rule of con¬ 
struction, it would exclude members of the House of Representa¬ 
tives. 

And now I come again to Mr. Madison. I say no matter what 
his ideas or views may have been, he was but one member of that 
Convention. Other members of that Convention may have voted 
for this clause because they saw that it meant what they wished 
to have enacted in the Constitution. Again, as to Mr. Madison, 
he was well skilled in all rules of construction. He knew how in¬ 
struments of this kind ought to be construed; and if he intended 
to remove this doubt as to the power to resign, he must have also 
intended that the language which he inserted should be governed 
by the ordinary rules of construction and that the vacancies which 
could be filled must be those which were caused by re usal to ac¬ 
cept, resignation, or some other like cause, because the rule by 
which the word ‘ ‘ otherwise ” is limited by the previous specific word 
applies more strongly to this amendment as fixed by Mr. Madison 
than it does to the clause as we now have it, because he repeated 
two of the same causes—refusal to accept or by resignation. He 
must have known and he must have intended that the only vacan¬ 
cies which a governor would have the right to fill were those of 
the like kind and like character as refusal to accept or resignation. 

But, Mr. President, it does seem to me, I repeat, a proposition 
which can not be got over that here this clause, as it came from the 
committee on detail, in apt language gave almost unlimited power 
of appointment; and the Convention deliberately changed it when 
it came from the committee on style, and was finally adopted by 
offering the language so as to limit the power as we contend for 
it. Why was not the language retained as reported by the com¬ 
mittee on detail? It would have been very easy to have done that. 

Mr. CARTER. Will the Senator yield to a question? 

The PRESIDENT pro tempore. Does the Senator from Ten¬ 
nessee yield to the Senator from Montana? 

Mr. TURLEY. Certainly. 

Mr. CARTER. I ask the Senator whether, in his opinion, this 
clause was inserted in the Constitution with a view to securing a 
full membership in the Senate at all times or of preventing a full 
membership at any time? 

Mr. TURLEY. I think it was intended to secure a full mem¬ 
bership. I have already stated that. 

Mr. CARTER. Unquestionably. Then in that case, this being 
a debated and debatable question of construction, does not the 
public policy require that we should yield to the manifest purpose 
of the convention in construing the language rather than resist 
the purpose and attempt to defeat it by construction? 

Mr. TURLEY. I am glad the Senator asked me that question. 
I think public policy requires just exactly the opposite from what 
4115 


22 


the Senator contends for. As I gather from his question, his idea 
is that this intention of keeping the Senate full should make us 
enlarge the governor's power and give him. the right to appoint, 
no matter how derelict the legislature were in the performance of 
their duty. I say not. I say, Mr. President, that it is better for 
the country that this Senate should have many vacant seats than 
that we should constantly have the disgraceful legislative con¬ 
tests which are becoming common over the land. 

I say it is far better for the welfare of our country and the 
safety of our Republic that every State be notified in language 
which can not be mistaken that its permanent representation in 
this body depends upon its selecting men to its legislatures who 
wiil do their duty, who will not be swayed by faction, by power, 
or by any other illegal or corrupt motive. It is far better that 
each State should understand that than that these things should 
be condoned by extending and enlarging the power of the gov¬ 
ernor. Let it once be understood, Mr. President, that a vacancy 
of this kind, where the legislature has had an opportunity to fill 
it, will not be filled if the legislature fails to do its duty, and the 
legislatures will do their duty and will fill the places. 

Mr. CARTER. I will call the Senator's attention, with his per¬ 
mission, to a fact, 

Mr. TURLEY. Certainly. 

Mr. CARTER. Since the decision of the Mantle case by the 
Senate more difficulty has originated in the attempt to elect Sena¬ 
tors than occurred within a generation prior to that time, So the 
panacea is not entirely adequate. 

Mr. PENROSE. Mr. President- 

The PRESIDENT pro tempore. Does the Senator from Tennes¬ 
see yield to the Senator from Pennsylvania? 

Mr. TURLEY. Certainly. 

Mr. PENROSE. If the Senator will permit me on the same point, 
I should like to ask him whether he does not lose sight of the abso¬ 
lute inability of the legislature frequently to fill a vacancy by 
reason of the existence of three parties, all divided and fairly and 
conscientiously so, rendering it impossible that any one candidate 
can get a majority of the whole legislature, as required by the act 
of Congress of 1866? Is not that inability a matter which is not 
the fault of the legislature and not the fault of the people of the 
State, but a most unfortunate occurrence, which, however, brings 
about a vacancy? 

Mr. TURLEY. Well, I will answer both the questions. 

I say to the Senator from Montana that, in my judgment, but 
for the Mantle case and the Corbett case we would have had 
many more instances of this sort than we have had. I say an¬ 
other thing. The belief or the impression which probably prevails 
that this Senate is not going to decide this question as a constitu¬ 
tional and legal question, but is going to decide it according to its 
membership, according to who it is who is seeking application to 
a seat in this body, has greatly to do with these contests. Let it 
once be known that, no matter what occurs, this is not a party 
question, that it is not a political question, that it is a constitu¬ 
tional question, that we are judges, and that we are going to 
stand by our decision, and these contests will cease. 

Now, as to the three parties, it is a very rare thing. I can not 
recall a case where that has happened. Probably it has happened; 
but if you will trace out the cases where legislatures have failed 
to elect, it is three ambitious candidates for office, frequently in 
4115 



23 


one party, nearly always in one party. It is the rarest thing—I 
can not recall one case now—where an honest division on party 
lines, with three or four parties in existence, has caused the legis¬ 
lature to fail to elect. 

Mr. STEWART. Mr. President- 

The PRESIDENT pro tempore. Will the Senator from Ten¬ 
nessee yield to the Senator from Nevada? 

Mr. TURLEY. Certainly. 

Mr. STEWART. Will the Senator explain how we can let it 
be known what our policy is? Since we have been at it over a 
hundred years and have varied the decision almost as often as we 
have had occasion to decide, and there is so much established on 
each side, 1 want to know how long it will take to get a line of 
decisions for anybody to respect. 

Mr. TURLEY. I am glad the Senator asked that question. If 
he will just bear with me a little while, I will show him. I think, 
that we have got a line of decisions right now which for seventy- 
five years has established a safe, reasonable, and proper principle 
in accordance with the ordinary meaning of the words used in 
this clause of the Constitution. 

Mr. BURROWS. An unbroken line. 

Mr. TURLEY. For seventy-five years, I will say; and when 1 
come to the cases I am going to take the time to go over them. 
It will not take very long, but when I come to the cases and when 
l finish with them the Senator from Nevada will see that ior 
seventy-five years no man has ever been admitted to a seat in this 
Senate where the legislature either before the vacancy occurred 
had an opportunity to fill it or had an opportunity to fill it after 
the vacancy occurred. 

In not one single instance since the Lanman case has a Senator 
been admitted here where either of those conditions existed, 
where the legislature had the right to fill the vacancy, if it was at 
the beginning of a term before the vacancy happened, or where 
after the vacancy happened it had the right to fill the term. Never 
under those circumstances has a Senator been admitted since 
1825; and never in the history of the Government has a Senator 
ever been seated on this floor where the vacancy took place when 
the legislature was in session. 

If any Senator can point me to a single case, from the founda¬ 
tion of the Government up to this time, where that has occurred, 
I will give up this question. Never but once before was any ap¬ 
plication of that kind ever made, and that was in the Allen case, 
as I shall show directly; and there the vacancy occurred only nine 
days before the legislature adjourned. But he was refused his 
seat. In the case now under consideration the vacancy occurred, 
the legislature being in session. It remained in session sixty days 
thereafter. Now, never in all that time has- 

Mr. SPOONER. The matter of time would not make any dif¬ 
ference, would it? 

Mr. TURLEY. Possibly it might. If a vacancy occurred the 
very last day of the session of the legislature, we might have a 
very interesting question here, one which I will say now is an 
abstract one, like the Senator from Wisconsin said about this 
being an abstract one two years ago. It may become concrete 
some time. 

Mr. PENROSE. Mr. President, will the Senator allow me? 

Mr. TURLEY. Certainly. 

Mr. PENROSE. Do I understand the Senator from Tennessee 
4115 




24 


to state that there has never been in the history of the Senate a 
case of a Senator being seated when appointed by the governor 
after the legislature had an opportunity to fill the term? 

Mr. TURLEY. Oh, I never said that. I said never since 1825. 
I said that there never had been a case where a Senator had been 
admitted when the vacancy occurred while the legislature was in 
session. 

Mr. SPOONER. Will the Senator allow me to ask him a ques¬ 
tion? 

Mr. TURLEY. Certainly. 

Mr. SPOONER. In some States, of course, the duration of the 
term of the legislature is fixed by constitutional provision. If the 
legislature was to adjourn by constitutional limitation on the 4th 
day of March without electing a Senator, does the Senator say 
there would be no power in the governor to appoint? 

Mr. TURLEY. Well, I can have two answers to that. I do 
not know, of course. That is a bridge we shall cross if we get to 
it. But I was going to say this to the Senator frankly- 

Mr. SPOONER. If the Senator will permit me, it looks to me 
like a question of power, and I do not see how that question of 
power can depend on whether the legislature is in session two 
days or thirty days after the vacancy occurs. The question, to my 
mind, is, where the legislature happens to be in session when the 
vacancy occurs, but by constitutional limitation adjourns at the 
end of that day or at the end of the next day, whether the Senator 
would say that there is no power, under the Constitution, in the 
governor to appoint. 

Mr. TURLEY. If you ask me what I say, I would say that 
there was no power to do it. What I meant to say was that I 
could see how a Senator would vote for the existence of a power 
in that kind of a case who would not do it in a case like this, and 
for this reason, that, as I construe these decisions, the cardinal prin¬ 
ciple, the great principle established in them, is that wherever the 
legislature has had the power and the opportunity to elect, then 
the governor has no power to appoint. 

It might very well be said that if the vacancy, by death or resig¬ 
nation, or whatever the cause is, occurred at the very last moment 
and just before the legislature adjourned, the legislature in that 
case had never had the power to do it, and that the spirit of the 
Constitution was and is that the legislature must have an oppor¬ 
tunity and the power to do it. That is the same principle which 
controlled the Senate in the Bell case. But that does not help this 
case. That does not bear on this case. It would be an exception. 
If I had my own way about it. or my own view, I would construe 
it strictly, and I would not admit the power; but I can see how 
men could differ on that and say that it was within the general 
spirit of the Constitution. 

Mr. SPOONER. Mr. President- 

The PRESIDENT pro tempore. Does the Senator from Ten¬ 
nessee yield to the Senator from Wisconsin? 

Mr. TURLEY. Yes, sir. 

Mr. SPOONER. If it is not agreeable to my friend- 

Mr. TURLEY. Oh, it is. I am perfectly willing to yield. 

Mr. SPOONER. The Senator says we should construe that 
clause of the Constitution strictly. 

Mr. TURLEY. Oh, I say I would do it. 

Mr. SPOONER. Now, what would be the Senator’s construc¬ 
tion of the word “meeting” in the clause, “the governor may ap- 
4115 





25 


point until the next meeting of the legislature? ” In its ordinary 
acceptation that would be until the assembling and organization 
of the legislature. 

Mr. TURLEY. I think, probably, if I had been in the conven¬ 
tion I would have voted just that way. 

Mr. SPOONER. Then if the governor could not appoint while 
the legislature was in session there might be six months when 
there would be no Senator, although they might elect one before 
they adjourned. 

Mr. TURLEY. Oh, yes. 

Mr. SPOONER. And if the appointee by the governor, which 
of course is a temporary appointment, can only hold until the next 
meeting of the legislature, there might be in a great many States 
months where there would be no Senator, and yet before the legis¬ 
lature adjourned they would elect one. I call the attention of the 
Senator to the fact that the impossibility of placing the ordinary 
construction upon that word (and it is not a word of technical 
meaning) required in the popular interests that the Senate long, 
long ago should resort to a fiction of law, which they did resort to 
in treating the session as an entirety, in treating it so that the last 
day meant until the meeting, in order to prevent an interregnum 
when there should be no Senator from the State. 

Mr. TURLEY. I appreciate that. 

Tuesday, February 27, 1900. 

Mr. TURLEY. Mr. President, in resuming this discussion 
where I left it yesterday I wish to notice briefly, before I come 
to the decisions of the Senate on the question, the argument 
which was made upon that clause of the Constitution which 
gives the power of appointment of Federal officials to the Presi¬ 
dent in case of vacancies in office during the recess of the Senate. 
It has been held constantly by various Attorneys-General that, 
under that clause of the Constitution, the President can make ap¬ 
pointments of executive officers in cases like the present, and it is 
said that the construction put upon that clause of the Constitu¬ 
tion by the Attorneys-General should be extended to this clause 
which regulates the manner in which Senators are to be selected 
and their places supplied. 

It will be seen that the language of these two sections is not 
identically the same. I am not going to take time to dwell on the 
different phraseology of the two sections, but to call the attention 
of the Senate to the marked difference in the subjects-matter. if I 
may so call them, to which the two sections refer. In the case of 
executive officers, the President is the original appointing power. 
The Senate only advises and consents to the appointment. The 
President makes it in the first place in every instance, just as the 
legislature fills vacancies in the Senate and fills original terms in 
the Senate. So there is a marked difference between the two 
cases. 

Then again, Mr. President, if an executive office is filled by an 
individual and a vacancy occurs, there is no one to perform the 
duties of the office. The duties must remain unperformed until 
the vacancy isffilled. But how different it is in the Senate. Such 
a condition of affairs can never occur here. But, as I have said, 
in the case of the executive office, if the President has not the 
power to fill it, no matter when the vacancy occurs, then months 
might pass, or a longer period, during which the functions of 
4115 


26 


some of the most important offices of the (Government would go 
unperformed. 

Mr. PENROSE. Mr. President- 

The PRESIDING OFFICER (Mr. Carter in the chair). Does 
the Senator from Tennessee yield to the Senator from Pennsyl¬ 
vania? 

Mr. TURLEY. Certainly. 

Mr. PENROSE. If I do not interrupt the Senator’s remarks— 
and I do not want to disturb the logical continuity of his dis¬ 
course—I should like to ask him whether upon the occasion of the 
impeachment of Johnson, or the defeat of the force bill, or upon 
numerous other instances when measures have been decided by 
one vote in this body, it was not of overwhelming importance to 
have the office filled, perhaps of vaster importance than having 
any mere office of employment under the Government filled, and 
would not perhaps the whole tenor of American history, or cer¬ 
tainly American legislation, have been altered had vacancies oc¬ 
curred upon those and other occasions? 

Mr. TURLEY. 1 am glad to answer the Senator’s question. Of 
course, at such times and on such occasions it is of great impor¬ 
tance to have the Senate full. I do not know whether or not it 
was full during the trial of President Johnson on impeachment. 
I do not know whether or not it was full when the force bill was 
defeated. I suspect that there were vacant seats in the Senate at 
both of those times, and yet the country passed safely through 
both of those emergencies. 

But what I do say, it is important to have the Senate full on 
such occasions, and on every other occasion, provided it is kept 
full in a constitutional manner. The importance of keeping it 
full does not justify resorting to unconstitutional methods in 
order to reach that end. 

Now let me point out to the gentlemen on the other side who 
contend for that position that occasions may occur, under their 
construction of the Constitution, in which vacancies would hap¬ 
pen on just such occasions. I forget the month in the year 1868 
during which the impeachment of President Johnson took place, 
whether it was a long or a short session of Congress, but let me 
take the case of the impeachment of a President which begins on 
the 1st of March of a long session of Congress, and let me take 
the case presented here by the State of Pennsylvania, with a leg¬ 
islature that can hold its sessions indefinitely and with a term 
expiring by regular efflux of time, say, on the 4th day of March, 
1900. 

Let me illustrate it by this year. Suppose now the Senate was 
engaged in such a trial and suppose the legislature of Pennsylva¬ 
nia was in session, as it was a year ago, tbe vacancy in the Senate 
having occurred by regular efflux of time. The legislature could 
remain in session as long as it pleased. It did in that case remain 
in session for two months after the vacancy occurred. Now, con¬ 
fessedly on the other side, there is no power under the Constitu¬ 
tion to fill a vacancy under such a condition as that 

So, then, according to the theory argued on the other side, you 
may have this very danger which is held up now as the reason 
why we should violate not only the letter but the* spirit of this 
clause of the Constitution. If the framers of the Constitution 
intended, as I said yesterday, that there never should be a vacancy 
in the Senate, if they contemplated impeachment trials and force 
4115 



27 


bills and other cases of important legislation, why did they not 
say in the Constitution, in language so plain that no one could 
mistake, that whenever a vacancy occurs, no matter when it 
occurs or no matter how it occurs, the governor may supply that 
vacancy until the legislature fills it? 

How easy it would have been to have met all these objections. 
And yet no man can stand here on any theory of the Constitu¬ 
tion, so far as this question is concerned, and avert these difficul¬ 
ties and these dangers. They would come on the theory main¬ 
tained on the other side just as they come under our theory. 
Possibly there would be a little less danger in it. The only dif¬ 
ference is that you lessen it in a very small degree. 

Mr. SPOONER. Mr. President- 

The PRESIDING OFFICER. Does the Senator from Tennessee 
yield to the Senator from Wisconsin? 

Mr. TURLEY. Yes, sir; I am glad to do so. 

Mr. SPOONER. I agree entirely with the Senator from Ten¬ 
nessee that under any construction of the Constitution there may 
be vacancies in the Senate, but I ask him if it must not have been 
the object of the framers of that instrument, in providing for tem¬ 
porary appointments by the governor, to minimize to the utter¬ 
most extent the dangers of vacancies in a legislative body? 

Mr. TURLEY. No, I do not agree to that, Mr. President—not 
to minimize to the uttermost extent, but to lessen as far as was 
consistent with the paramount idea which the framers of the 
Constitution had in mind, and that was to have the Senators se¬ 
lected by the legislatures. Now, they have minimized all these 
dangers just as far as it was possible for the human mind to 
minimize them, consistent with that great and paramount idea 
that the Senators must be chosen by the representatives of the 
people and must not be the choice of one man. 

Mr. SPOONER. Now, if, the Senator from Tennessee will per¬ 
mit me again- 

The PRESIDING OFFICER. Will the Senator from Tennessee 
yield to the Senator from Wisconsin? 

Mr. TURLEY. I yield with pleasure. 

Mr. SPOONER. No one who differs with the Senator will con¬ 
tend for a moment that the governor can choose a Senator. That, 
it is admitted, can only be done by the legislature. But the ap¬ 
pointment made by the governor is only a temporary appointment, 
and the appointee holds only until the next meeting of the legisla¬ 
ture, whose duty it is, under the Constitution, to choose a Senator. 
Now, what theory is it upon which the Senator would say that 
this temporary appointment, incorporated in the Constitution for 
the purpose of minimizing the danger of vacancies, should be by 
ingenuity restricted? 

Mr. TURLEY. Well, I say so just on the principle that I stated 
yesterday, and as I will illustrate a little further. As I read the 
Constitution and understand it, the framers thereof intended that 
the legislatures should keep the Senate full; and they never con¬ 
templated the idea of a legislature proving recreant to its duty. 
They gave the governor the power to appoint where the legisla¬ 
ture had no opportunity to elect. 

But whenever the opportunity and the power returned to the 
legislature by the reassembling of the legislature, then they in¬ 
tended to leave it there and put the responsibility upon the legis¬ 
lature, because under that theory no State could ever lose its rep- 
4115 




28 


resentation on the floor of this body unless it did so either volun- 
tarily or by the failure of its own legislative officials to do their 
duty. 

Mr. SPOONER. Now, if the Senator from Tennessee will per¬ 
mit me- 

Mr. TURLEY. I will. 

Mr. SPOONER. Suppose on the second day, or the third day, 
or the fourth day after that vacancy occurs by efflux of time, the 
legislature being session, it had been dispersed by a public enemy 
or driven away bj T some pestilence, would the Senator say that 
the governor then had no power to appoint, the Senate being in 
session and questions of legislation of the most vital importance 
pending, perhaps of vital importance to the State, like a boundary 
question? Would the Senator say that the governor would have 
no power and was intended to have no power to appoint? 

Mr. TURLEY. Well, undoubtedly I would say that the gov¬ 
ernor had no power to appoint under such circumstances. Now, 
let me ask the Senator from Wisconsin a question or two. We 
had that up in the Corbett case. An army, or an insurrection, or 
a mob which would destroy the legislature would be pretty apt 
to have the governor running, too. When you go to imagine these 
cases, you must give them their full effect and force. A mob or an 
insurrection that could destroy a legislature for any length of time 
would destroy the State government for the time being. 

Now, how we can imagine a governor there in the full exercise 
of all his functions, and an insurrection in control of all other 
matters, dispersing the legislature, is rather hard for me to con¬ 
ceive. But if we can conceive it, let us take the abstract question. 
Then I would say it is one of those miracles almost, or a thing 
that was never contemplated or intended to be provided for. As 
soon as the legislature met together again and order was restored, 
then the Senate would be full. Another clause of the Constitu¬ 
tion would come into play at once, and it would become the duty 
of the General Government, under the provisions of the Constitu¬ 
tion, to give that State a republican form of government and to 
suppress the rebellion. 

Mr. SPOONER. I have not very much imagination, but I can 
imagine that the legislature might be dispersed and its members 
scattered, so that it would be quite impossible for it to assemble 
in joint convention or otherwise, and the governor might be killed, 
but he could hardly be scattered. Wherever he was within the 
limits of the State I suppose he might exercise his power of ap¬ 
pointment. 1 think that is hardly an answer to my question. 

Mr. TURLEY. What I meant to say is that it is hard for me 
to conceive such a partial destruction of a State government as 
that question would imply in order to make it practicable. That 
is the whole question. 

Now, I want to refer to one other thing—and a very material one, it 
seems to me—showing why our construction of this clause of the 
Constitution is the proper one. I have already argued on it pretty 
elaborately. But take these important questions; take the force 
bill; take the Philippine question; take any important question. 
If a Senator is sent here according to the way we say the Consti¬ 
tution means, he comes here in ninety-nine cases out of a hundred, 
or, I will say, in a hundred cases out of a hundred, representing 
his people. He is elected by the legislature, and the legislature is 
elected by the people. 

4115 



29 


Now, suppose a governor sends him here. The governor may 
not represent the people on any such question. Take two of the 
vacancies that now exist. If we allow this appointment, I am 
told that in both Delaware and Utah the party which is in power, 
and which controls the legislature, and which has been put there 
by the popular vote, and which represents the people according to 
the last election would not be represented in the Senate. 

In other words, a Democratic Senator would represent a Repub¬ 
lican State and a Republican Senator would represent a Demo¬ 
cratic State. That is what I am told. I have not examined it 
critically, but I can see that that can result. When the force bill 
was up, or when any other great question is up, it might be de¬ 
cided wrongfully by a Senator sent here by a governor who did 
not represent the people he came here to represent. All those 
things could follow. 

Mr. PENROSE. Mr. President- 

The PRESIDING- OFFICER. Does the Senator from Tennes¬ 
see vield to the Senator from Pennsylvania? 

Mr. TURLEY. Yes, sir. 

Mr. PENROSE. I would remind the Senator, if the terrible re¬ 
sults of that doctrine appall him so, that we have a very highly 
honored and respected associate sitting here to-day, appointed by 
a governor who was not a representative of the same party as that 
which is in control of the legislature. I refer to the distinguished 
Senator from Nebraska [Mr. Allen], who recently arrived here 
with an appointment from the governor. 

Mr. SPOONER. He was elected at the same election. 

Mr. PENROSE. I understand that the governor was elected at 
the same election which elected the legislature. 

Mr. BACON. Will the Senator from Tennessee permit me? 

Mr. TURLEY. Certainly. 

Mr. BACON. There is this distinction in the two cases. In 
each of the cases, in the case of Delaware and in the case of Utah, 
the governor was elected under a four-year term and at the suc¬ 
ceeding election there was a revolution in the control of the State 
government so far as the election of a legislature was concerned. 
So in all those cases the Senator who would thus be appointed 
would, in fact, not reflect the sentiment of the people as ex¬ 
pressed in the last election. 

In the case of Nebraska, however, the governor was elected at 
the same time with the legislature, and while it is true that the 
legislature is Republican, the popular vote of the State is in ac¬ 
cord with the governor who appointed the present Senator from 
Nebraska. 

• In the one case there is an absolute reflection of the sentiment 
of the State as expressed by the popular vote in the last election. 
In the other two cases there would be an absolute antagonism be¬ 
tween the sentiment of the Senator who would be sent here by 
either the governor of Delaware or the governor of Utah and the 
sentiment as expressed in the election of the last legislature in 
each of those States. 

Mr. SPOONER. And yet, if the Senator will permit me, he 
will agree that it was the intention or in the contemplation of the 
framers of the Constitution that just such a governor might ap¬ 
point a Senator. 

Mr. BACON. That is quite true; but the Senator will remark 
that in the one case it is unavoidable. In other words, where the 
4115 



30 


appointment is by the governor in the case where the vacancy has 
occurred subsequent to the session of the legislature it is an un¬ 
avoidable difficulty which can not be met. In the other case it 
is not unavoidable, but, as stated by the Senator from Tennessee, 
it is a failure on the part of the legislature to perform its duty. 

Mr. TURLEY. In other words, I would say to the Senator 
from Wisconsin, it is an argument for not enlarging the power of 
the governor. 

Mr. BEVERIDGE. Will the Senator permit a question? 

Mr. TURLEY. Certainly. 

Mr. BEVERIDGE. The Senator speaks with reference to the 
Senate representing the popular will. I wish to ask the Senator 
whether it is not true that the purpose in making the term of a 
Senator six years and making the Senators elective by the legisla¬ 
ture was for the purpose of lifting them above the spasmodic and 
temporary mutations of the public will and making them a rep¬ 
resentative of the continuous current of public opinion rather 
than of its temporary whirls and eddies? 

Mr. TURLEY. Well, undoubtedly there is great force in what 
the Senator from Indiana says, that the length of the term was 
for that purpose; but that has nothing to do, it seems to me, with 
the original and fundamental proposition that the framers of the 
Constitution put the power of selection in the legislature, and 
they did it deliberately because the legislature, coming from all 
parts of the State, represented the people more directly than the 
governor would represent them. The debates in the convention 
show that. The debates show that the objection was made to 
giving the appointing power at all, because it was contrary to that 
principle which says that the legislative, executive, and judicial 
departments should be kept separate. 

Mr. BE VERIDGE. Will the Senator allow me? 

Mr. TURLEY. Certainly. 

Mr. BEVERIDGE. My question was directed to the point 
which I understood the Senator was making, that if the Senator 
was appointed by the governor he would be less representative of 
the public opinion of the State from which he came. Now, in 
view of the fact that an election may occur this year which will 
show the opinion of the State to be one way, and which elects a 
governor, and an election will occur two years later electing a 
legislature of a different political complexion, I ask the question 
whether or not the original design in making the term and fixing 
the method of the election of Senators was not to lift them above 
just exactly what the Senator says would be the evil that would 
come from an appointment by the governor. That was the pur¬ 
pose of my question. 

Mr. TURLEY. I understand that the six years’ term was to 
give some degree of independence to the Senators. 

Mr. PENROSE. And the method of election, too. 

Mr. TURLEY. I understand that, but what I mean is that 
whether you enlarge the appointing power of the governor, or even 
leave it as it now stands under the Constitution, unavoidably at 
times it will occur that the governor will send a man here repre¬ 
senting one set of ideas, whereas if the legislature had been in ses¬ 
sion at that time it would have sent a man representing other 
ideas here to the Senate. The governor might appoint a man who 
would come here and hold for a few weeks and vote on important 
questions, holding one set of ideas, and the legislature of that State, 
4115 


31 


just as soon as it could get together, would send a man represent¬ 
ing a different set of ideas, and the ideas which the people of the 
State at that time wished to enforce. The question comes down 
to the fact that the political sentiment of the State ought to pre¬ 
vail at the time the place is to be filled. 

Mr. SPOONER. So far as this matter of public sentiment is 
concerned, is it not just as true of an appointment made after the 
3d day of March, after the term has been once filled and becomes 
vacant? 

Mr. BEVERIDGE. That is the point which occurred to me 
when I asked the question. 

Mr. TURLEY. Undoubtedly. 

Mr. SPOONER. If there is a Democratic governor, even under 
your theory, there is a vacancy after the office has once been 
filled and the governor may appoint. He would naturally appoint 
a Democrat. He appoints him, however, only temporarily. The 
next legislature is to fill the vacancy—to choose the Senator—so 
that it is perfectly clear, is it not, that this was in the contempla¬ 
tion of tfye men who framed that instrument? 

Mr. TURLEY. Undoubtedly it may happen under any con¬ 
struction of it, but what I say is that it is an argument to show 
that the power of the governor to appoint ought not to be enlarged. 
Certainly it can happen under our construction. It may more 
often happen under the construction maintained on the other side. 
That is the only difference there is in it. 

Now, Mr. President, I wish to notice as briefly as I can the 
precedents established by the Senate on this question. When we 
come to examine them two things will become plain and manifest. 
One is that there is not a single reported case from which those 
who advocate the right of Mr. Quay to a seat in this body can 
finH any comfort, and the other is that for seventy-five years, as I 
stated, there has been a remarkable consistency and unanimity in 
the decisions. 

I am going to notice only those cases about which there was 
discussion, and which were referred to committees, and as to which 
reports were made, except as to the first case which occurred, and 
that was the case from Virginia referred to by the Senator from 
Virginia [Mr. Daniel] in his argument the other day. 

[At this point Mr. Turley was interrupted by the expiration 
of the morning hour, and unanimous consent was given that be 
might proceed. ] 

Mr. TURLEY. The first case, as I said, was one from Vir¬ 
ginia, and that was a case where a Senator was selected by the 
legislature and declined to serve, just as in the recent case from 
Nebraska, a Senator was selected by the legislature and died 
before he could qualify. In both those cases there never has been 
any controversy, so they fall within both the letter and the spirit 
of the Constitution. They are vacancies which occurred by cas¬ 
ualty, by resignation, by death. 

Now, the first case that is reported about which there was any 
discussion is the case of Kensey Johns. I refer to it very briefly, 
and especially for one point. The facts are that George Read, a 
Senator from Delaware, resigned his seat in December, 1793, dur¬ 
ing the recess of the legislature of said State. The legislature met 
in January and adjourned in February, 1794, without making any 
selection. On the 19th of March Kensey Johns was appointed by 
the governor of said State to fill the vacancy. It was determined 
4115 


32 


that Mr. Johns was not entitled to his seat, a session of the legis¬ 
lature having intervened between the resignation of Mr. Read and 
the appointment of Mr. Johns. 

In other words, the legislature had been in session after the 
vacancy had occurred, had failed to fill the place, and therefore 
the appointee was not seated. Now, the importance of that case, 
in one aspect of it, is this: There were five members of the Federal 
Convention who were members of the Senate when this case was 
acted on. Four of them voted against the right of claimant to 
said seat and one voted in his favor. 

This was in 1794, only a very short time after the Constitution 
was adopted, and it should be persuasive of how the framers of 
the Constitution understood and construed the clause of the Con¬ 
stitution now under consideration. 

The next case is that of Uriah Tracy, of Connecticut, which was 
disposed of on March 4, 1801. The facts in that case were as fol¬ 
lows: Mr. Tracy’s first term expired March 3, 1801. On March 4, 
at a special session of the Senate, he produced credentials of ap¬ 
pointment by the governor of Connecticut to fill the vacancy. It 
appeared from the credentials, which were dated February 20, 
1801, that the legislature was not then in session and that he was 
appointed to serve from March 3, 1801, until the next meeting of 
the legislature. 

Exceptions were taken to his credentials, but he was admitted 
to his seat by a vote of 13 to 10. It will be seen that in this case 
the vacancy occurred during a recess of the legislature, and that 
the legislature had had no opportunity to fill it after it occurred. 
It had had an opportunity to fill it before it occurred, but not 
after it occurred, and therein it differs from the Quaj- case. But, 
of course, it was a change in the rule, so far as the Johns case 
was concerned. 

The next case was that of Samuel Smith, which was the same 
in facts as the Tracy cash, except that in the Tracy case the 
appointment was made before the vacancy occurred, whereas 
in the Smith case it was made after the vacancy occurred. The 
cases of Mr. Tracy and Mr. Smith, taken together, decided that 
where a legislature, whose duty it was to elect a successor to a 
Senator whose term of office was about to expire, adjourned be¬ 
fore the expiration of said term without electing the successor, 
the executive might then appoint, and the appointee would not 
simply hold his seat until the next meeting of the legislature, but 
during the next session of the legislature or until that session of 
the legislature filled the vacancy. 

In the Smith case, which followed the Tracy case, the only 
question really discussed was whether the term of the appointee 
ended at the meeting of the legislature or whether he should con¬ 
tinue to serve through the legislature until the legislature acted 
or until it adjourned,, So the two cases did establish the doctrine 
that the failure of the legislature to fill a term which expired by 
regular limitation did not prevent the governor from making an 
appointment. 

Now, then, in 1825 came the Lanman case. The Lanman case 
reversed the Tracy case and the Smith case and went back to the 
doctrine established in the Johns case. It has been said that no 
one can tell exactly on what ground the Lanman case was de¬ 
cided. The facts, as I have stated, in the Lanman case were 
identical with the facts in the Tracy case and identical with the 
4115 


33 


facts in the Smith case, with the exception that in the Smith cases 
the appointment was not made until the vacancy had occurred. 
In the Lanman case it was made before the vacancy occurred, 
just as it was in the Tracy case. 

It has been argued that the Lanman case went off on the fact 
that the appointment was made before the vacancy occurred, but 
I think this is manifestly erroneous when we examine the cases. 
I think so for several reasons. In the first place, there is no refer¬ 
ence anywhere in the debates or discussions to the fact that the 
decision was placed on the proposition that the appointment was 
prematurely made. If such a question had been considered, noth¬ 
ing would have been more natural than that the distinction be¬ 
tween the Tracy case and the Smith case would have been ob¬ 
served. because under that idea the Tracy case would have been 
wrongly decided and the Smith case would have been rightly de¬ 
cided. 

But when we come to the next case, which was the Sevier case, 
and which was decided twelve years after the Lanman case, we 
find that the Senate, or at least Mr. Grundy, who made the report 
in the Sevier case, understood the Lanman case to have been' de¬ 
cided exactly on the grounds for which we contend, and that was, 
that the legislature having had an opportunity to fill the vacancy, 
the governor could not appoint. 

Now. not only that, but it will be noticed by those who choose to 
go through these cases that there were at least two Senators who 
passed upon the Sevier case who were in the Senate at the time 
the Lahman case was decided—Mr. Benton, of Missouri, and 
another Senator whose name I just now forget. Mr. Benton has 
given his views and recollections of the ground on which the 
Lanman case was decided. I read from Taft’s Election Cases, on 
page 39, to show how he understood, when the Sevier case was de¬ 
cided in 1837, the ground upon which the Lanman case had been 
decided twelve years before. He says: 

Mr. Lanman has served a regular term as Senator from Connecticut. His 
term of service expired on the 3d of March of this year, and the general 
assembly of the State having failed to make an election of Senator in his 
place, he received a temporary appointment from the governor. On pre¬ 
senting himself to take the oath of office on the 4th day of March, being the 
first day of the special Senatorial session convoked by the retiring President 
(Mr. Monroe) according to the usage for the inauguration of his successor, 
his appointment was objected to as not having been made in a case in which 
a governor of a State could fill a vacancy by making a temporary appoint¬ 
ment. 

Mr. Tazewell was the principal speaker against the validity of the appoint¬ 
ment, arguing against it both on the words of the Constitution and the reason 
for the provision. The words of the Constitution are: “if vacancies happen 
(in the Senate) by resignation or otherwise during the recess of the legisla¬ 
ture of any State, the executive thereof may make temporary appointments 
until the next meeting of the legislature.” “Happen ” was held by Mr. Taze¬ 
well to be the governing word in this provision, and it always implied a con¬ 
tingency and an unexpected one. It could not apply to a foreseen event, 
bound to occur at a fixed period. 

Here the vacancy was foreseen; there was no contingency in it. It was 
regular and certain. It was the right of the legislature to fill it, and if they 
failed, no matter from what cause, there was no right in the governor to 
supply their omission. The Senators voting in favor of the motion were, etc. 

Showing from the highest authority that in the Lanman case the identical 
point at issue here to-day was raised and decided and remained an unbroken 
precedent from 1825 to 1879. 

And it has remained unbroken down to the present time. 

The Sevier case has already been commented upon. That was 
a case where Senator Sevier drew the short term. He was elected 
4115—3 


34 


by the legislature in 1836 and drew the short term, so as to make 
his term of office expire on the 3d of March, 1837; but before the 
news reached Arkansas the legislature had adjourned. There was 
a case where, as is shown by the report of Mr. Grundy, the va¬ 
cancy had occurred from causes which had in them elements of 
uncertainty and where the legislature had never had an oppor¬ 
tunity to fill it after it occurred. 

The next case was the case of Mr. Winthrop, from Massachusetts. 
Mr. Winthrop was appointed July 27, 1850, to fill a vacancy in 
the Senate happening by the resignation of Daniel Webster. Feb¬ 
ruary 1, 1851, Robert Rantoul was elected by the legislature to 
fill the unexpired term. February 4, Mr. Rontoul not having ap¬ 
peared to take the seat, Mr. Winthrop offered a resolution, which 
was agreed to, “ That the Committee on the Judiciary inquire and 
report to the Senate, as early as practicable, at what period the 
term of service of a Senator appointed by the executive of a State 
during the recess of the legislature thereof rightfully expires.” 

The committee reported that it did not expire until the legisla¬ 
ture acted or adjourned, just as was held in the Smith case. 
There was never any vote in the case, because the regularly elected 
Senator appeared and took his seat before the Senate voted. 

The next case was that of Mr. Archibald Dixon, of Kentucky, 
in 1852, which is an instructive case on many of the points in¬ 
volved here. It is the last one about which I shall have to read 
the facts. 

On December 17,1851, Henry Clay was a Senator from Kentucky, qhosen by 
the legislature for a term of six years, which expired on March 3,1855. Being so 
a Senator, he resigned by a communication to the legislature, declaring that 
it was to take effect on the first Monday in September, 1852. The legislature 
then being in session, received the resignation, and chose Mr. Dixon to fill 
the vacancy thus to occur from the first Slondayin September, 1852, to March 
3,1855. The legislature then adjourned. 

On June 29, 1852, during a recess of the legislature, Mr. Clay died, and the 
governor of Kentucky made a temporary appointment of Mr. Meriwether as 
a Senator from Kentucky to hold the seat until the first Monday in Septem¬ 
ber, 1852, the date on which Mr. Clay’s resignation was to take effect. Mr. 
Meriwether immediately took the vacant seat and held it until Congress 
adjourned on the last day of August, 1852. On the reassembling of Congress, 
December 6, 1852, Mr. Meriwether did not appear, and Mr. Dixon appeared 
and presented his credentials. 

Objection was made to Mr. Dixon’s taking the oath of office on the ground 
that the seat still belonged to Mr. Meriwether, the point being that Mr. Meri¬ 
wether had been appointed to fill a vacancy happening by the death of a 
Senator and he had a right to the seat until the next meeting of the legisla¬ 
ture, and that it was not in the power of the governor to limit the term of 
office until the first Monday in September, 1852, the day on which Mr. Clay 
had declared his resignation was to become operative. The Senate held that 
Mr. Meriwether’s right to the seat expired on the first Monday in Septem¬ 
ber, 1852, and that thereafter Mr. Dixon was entitled to it. 

This case establishes several principles. The first and most important is 
that if, while the legislature is in session, a Senator tenders his resignation 
to take effect at a date which will be subsequent to the adjournment of the 
legislature, the legislature can fill the vacancy which is to thus begin after 
its adjournment. This carries out the paramount idea and intention of the 
convention, already mentioned, to have the Senate kept filled with Senators 
chosen by the legislatures. 

The second principle established is that a Senator’s resignation can take 
effect in futuro; and the third is that if the Senator, after having so resigned, 
dies before the date fixed for the consummation of the resignation, the legis¬ 
lature not then being in session, the governor can appoint. This case, in all 
its aspects, is adverse to the claims of Mr. Quay. 

The next case is that of Samuel S. Phelps, of Vermont, in 1854. 
I need not repeat the facts. Mr. Phelps was refused his seat be¬ 
cause the legislature had an opportunity to fill the vacancy and 
had failed to fill it. * The resolution in the case shows clearly the 
grounds upon which it was refused. 

4115 




35 


The next case was that of Jared W. Williams, of New Hamp¬ 
shire, who was refused a seat on exactly the same grounds in the 
same year, 1854, because the legislature had had an opportunity 
to fill the place and had failed to fill it. 

The next cases are those of Bell and Blair, called the New 
Hampshire cases, with which gp the Florida cases. Those cases 
weie somewhat peculiar because they arose under facts growing 
out of the passage of the act of I860 by Congress, which fixes the 
legislature which is to emct Senators for their regular terms; in 
other words, that act provides that— 

The legislature of each State which is chosen next preceding the expira 
tion of the time for which any Senator was elected to represent sakl State in 
Congress shall, on the second Tuesday after the meeting and organization 
thereof, proceed to elect a Senator in Congress, etc. 

In 1878 the constitution of New Hampshire was changed so that 
its biennial legislatures were chosen in November, but were not 
allowed to meet in session until the following June. 

So that the legislature which, under the act of 1866, alone had 
the right and authority to fill those vacancies could not meet under 
the constitution of the State until some two months and a half after 
the vacancies had occurred. Under these circumstances, after 
much debateandlong discussion, the Senate held that the governor 
had the appointing power, because they were cases where the leg¬ 
islature never had had the opportunity or the legal authority and 
power to fill the vacancies. They are perfectly consistent' with 
the other cases, when we come to consider the reason upon which 
they were decided. 

The next case was the case of Horace Chilton, of Texas, and 
that only involved the question again raised as to whether an ap¬ 
pointment made in advance of the occurrence of a vacancy was 
valid. It was held that it was valid. 

Now come the cases of Mantle, of Allen, of Beckwith, and of 
C:>rbett, decided, respectively, the first three cases in 1898, and 
the last in 1898. In each of those cases the legislature had had an 
opportunity to fill the vacancy and had, after numerous ballots, 
except in the Corbett case, failed to fill it, had adjourned without 
filling the vacancy, and then the governor had made an appoint¬ 
ment. In one of the cases, the Allen case, the vacancy had taken 
place while the legislature was in session, nine days before they 
adourned. In all those cases the Senators were refused their 
SGclts 

Mr. STB WART. Will the Senator allow me a moment? 

Mr. TURLEY. Yes. 

Mr. STEWART. I will say to the Senator that two of those 
cases did i ot turn on the question of the Constitution, but they 
turned on the silver question, Senators voting against those ap¬ 
pointees because they were silver men. 

Mr. GALLINGER. Mr. President, the Senator must excuse 
me, as a member of this body, in not permitting him to say why I 
voted against those appointees. It was not on account of the sil¬ 
ver question, but it was on much higher ground than that. 

Mr. STEWART. I only stated that such was the case as a gen¬ 
eral rule. I will admit there were exceptions. 

Mr. GA LLINGER. There may have been somebody who voted 
on such ground. 

Mr. ALLEN. Mr. President, I wish to say- 

The PRESIDENT pro tempore. Has the Senator from Tennes¬ 
see yielded the floor? 

4115 



36 


Mr. TURLEY. No, sir; but I yielded to the Senator from 
Nevada [Mr. Stewart], and I now yield to the Senator from 
Nebraska [Mr. Allen]. 

Mr. ALLEN. Mr. President, I do not want to be put in a false 
light by the statement that the Mantle case was decided on the 
silver question. I was myself very strongly in favor of silver and 
in sympathy with the opinions of Messrs. Mantle, Allen, and Beck¬ 
with at the time, but my conviction was that they were not enti¬ 
tled under the Constitution to seats in this body, and I voted 
against their right on that ground. 

Mr. STEWART. Many of the silver men voted against them, 
and I believe some gold men voted against them, and it was stated 
audibly Tiere that they would not vote for them on that account. 

Mr. TURLEY. I ask the Senator from Nevada if the silver 
question figured in the Corbett case or not? 

Mr. STEWART. It did not. There were other questions in¬ 
volved in that case. 

Mr. TURLEY. There were other considerations, then, that 
made the case much more favorable to Mr. Corbett than the facts 
in this case are for Mr. Quay. 

Mr. SPOONER. I do not think the silver question figured in 
that case, but the gold question. 

Mr. STEWART. No; I think it was the question of the demor¬ 
alization of the Oregon legislature. That had more to do with 
the decision in that case than anything else. Although it was 
not stated in the debate, it was stated privately that Mr. Corbett’s 
relations to the failure of that legislature to organize had some¬ 
thing to do with the feeling toward him here. 

Mr. TURLEY. Well, Mr. President, those explanations mean 
that it is idle to talk about the Senate settling these questions on 
constitutional or legal grounds, and that it is idle to make legal 
and constitutional arguments if the Senate is going to be in¬ 
fluenced by political questions or by outside questions, if it is not 
a question of what the Constitution means, but a question as to 
the gentleman who presents himself and the particular views he 
may entertain upon a given question. 

Mr. STEW ART. That is the very reason we have made prece¬ 
dents for a hundred years which are so variable. Those consid¬ 
erations have got into nearly every case, more or less, until many 
Senators feel at liberty to disregard the constitutional questions, 
inasmuch as the Senate will never be governed by precedent—it 
never has been, and never will be—and there are always other 
considerations. The New Hampshire cases were decided under a 
different rule, as well as several others. 

Mr. TURLEY. I can see very well how the New Hampshire 
cases were decided exactly as they were. There the legislature, 
growing out of the operation of the act of Congress of 18G6, under 
the State constitution, had never had an opportunity to fill the 
vacancies. 

Mr. STEWART. The construction given, as I understand, in 
the Lanman case in 1825 was that it was not a vacancy happen¬ 
ing, but that it had become a vacancy otherwise than from the 
expiration of the term, in order to authorize the governor to fill 
it; and the New Hampshire cases were directlv in opposition to 
that. 

Mr. PENROSE. Will the Senator permit me a moment? 

Mr. TURLEY. Yes, sir. 

4115 


37 


,,PENROSE. I call the Senator's attention to the fact that 
the .Laninan case was decided, as the Senator from Nevada [Mr. 
Stewart] has stated, upon a doctrine which has long since been 
abandoned by even the strict constructionists who oppose the seat¬ 
ing of the present appointee. 

Mr. TURLEY. I can not find anywhere any case where it has 
been abandoned. In the case of Mr. Lanman the facts show that 
his term expired by regular limitation on March 3, 1825. The gov¬ 
ernor appointed him to succeed himself on February 8,1825. His 
certificate of appointment showed that the legislature was not in 
session and would not be in session at the time the vacancy oc¬ 
curred. and that the next legislature thereafter would not meet 
until May; but a legislature had been in session whose duty it 
was to fill the vacancy, which it had failed to fill. Mr. Benton 
and Mr. Grundy both show—Mr. Benton having been in the Sen¬ 
ate and passed on the Lanman case—that Mr. Lanman was re¬ 
fused his seat because it was the expiration of a regular term, 
and because the legislature which ought to have filled the va¬ 
cancy had met and failed to fill it. 

I would rather take the authority of Mr. Benton, who was a 
member of the Senate at that time, and who wrote on it very 
shortly thereafter, and the Senate document filed here by Mr. 
Grundy, who was one of the most eminent lawyers of this coun¬ 
try—I would rather take their authority as to how this case was 
decided and on what grounds it was decided than any theories 
which may be brought forward now about it. 

But the fact itself remains, without any dispute, that from that 
time down to this no man has ever been seated in this Senate, 
either by consent or after debate or under any circumstances, 
where the legislature, either before the vacancy occurred or after 
the vacancy occurred, had failed to fill the vacancy. If there is a 
case that can be found since 1825, seventy-five years ago. under 
which any Senator has ever been seated in this body where a leg¬ 
islature has had the opportunity to fill the vacancy and has failed 
to fill it, then, as I have said, I am willing to admit that I am 
wrong about all these cases. 

It is true that from 1801 to 1825 many Senators were seated 
here where the legislature, which ought to have filled the vacancy 
expiring by regular efflux of time, had failed to do it; but even 
between 1801 and 1825 I can find no case where a Senator has 
been admitted under circumstances like these; that is, where the 
legislature after the vacancy occurred had had an opportunity to 
fill it. There is not a case from the foundation of the Govern¬ 
ment down to this time, the legislature having had the oppor¬ 
tunity to fill a vacancy which was in existence when it met and 
failed to fill it, where the appointment has been made by the gov¬ 
ernor and the appointee has been allowed to take his seat here. 

Mr. GALLINGER. Mr. President, if the Senator will permit 
me- 

The PRESIDENT pro tempore. Does the Senator from Ten¬ 
nessee yield to the Senator from New Hampshire? 

Mr. TURLEY. Certainly. 

Mr. GALLINGER. I want to make a simple statement con¬ 
cerning the New Hampshire cases. The Senator from Tennessee 
has substantially stated them accurately. Prior to 1876, in New 
Hampshire, we had annual elections, but the elections were in the 
month of March and our legislative sessions were in the month of 
4115 





38 

June, so that there was no difficulty in the matter of electing 
United States Senators. 

In 1876 we amended our constitution, adopting biennial elec¬ 
tions, to bs held in the month of November, and did not change 
the time for the legislative session. In that constitutional con¬ 
vention I took occasion myself, being a member of it, to call the 
attention of the convention to the fact that unless we changed 
the time of our annual sessions there would be a hiatus in cer¬ 
tain years from March 4 until the meeting of the legislature in 
June, and there would necessarily be vacancies in the Senate; 
but the convention did not think that important, and went on 
and changed the time of holding the elections, and not that of 
holding the sessions* of the legislature. 

The result was in a little while a Senatorial term expired on the 
4tli day of March; the legislative session would not be held until 
June, and the governor appointed a Senator. The legislature had 
not and could not have the privilege of electing a Senator. W hile 
those cases have been, I think, cited on their side by certain Sena¬ 
tors who have argued in favor of seating Senators on credentials 
such as Mr. Quay presents, it has always seemed to me that the 
force of those cases was in the direction which the Senator from 
Tennessee is so ably arguing to-day, that the legislature did not 
have an opportunity to elect and could not elect, and hence the 
governor had the right to appoint. 

Now, just one word in reference to the observation made by 
the Senator from Nevada [Mr. Stewart]. It maybe that the 
Senator from Nevada voted on the silver issue in the Mantle case 
or on the gold issue in the Corbett case. I voted consistently in 
all those caseq 1 voted against seating Mr. Mantle, not on the 
silver question, or against seating my friend Mr. Allen, of 
Washington—a man to whom I was attached as much as 
I believe I have ever been attached to a man in my public 
life—on other than the financial question, and against Mr. 
Corbett, certainly on other than the financial question, because 
he and I agreed on the matter of finances. I trust that no Senator 
has cast his vote in the past, and I trust that no Senator in voting 
on the question that is under debate to-day will cast his vote on 
any other ground than a ground much higher than that of the 
views a man may hold on silver or on gold or on any such question. 

Mr. TURLEY. Mr. President, to sum up and in conclusion— 
because I have been much longer than I intended- 

Mr. SPOONER. Will the Senator allow me? 

The PRESIDENT pro tempore. Does the Senator from Ten¬ 
nessee yield to the Senator from Wisconsin? 

Mr. TURLEY. Certainly. 

Mr. SPOONER. Did I correctly understand the Senator as say¬ 
ing that there had been no instance where a Senator had been 
seated who had been appointed by the governor, the legislature 
having met and having failed to elect? 

Mr. TURLEY. Oh. no. I say from 1801, the time of the Tracy 
case, down to 1825. there were a large number of instances and 
cases where vacancies beginning at the commencement of a regu¬ 
lar term, the legislature which ought to have filled them having 
failed to act. have been allowed to be filled by the governor. 

Mr. SPOONER. Those were not cases, notably the case of 
Samuel Smith, of Maryland- 

Mr. TURLEY. The case of Samuel Smith, of Maryland—and 
4115 






39 


I have that case right here—follows the Tracy case There was 
no contest over it. The only contest was how long the right to 
the seat ’asted. It was a case where the legislature had met and 
failed to elect. 

Mr. SPOONER. It was a case where the legislature had met 
and failed to fill an anticipated vacancy? 

Mr. TURLEY. Yes. 

Mr. SPOONER. It is a case where there was no pretense that 
the legislature had not had an opportunity to elect? 

Mr. TURLEY. That is right. 

Mr. SPOONER. And the Senator says in the Sevier case it was 
to fill a vacancy? 

Mr. TURLEY That is right. 

Mr. SPoONER. But that did not pass entirely sub silentio, 
because the legislature having met and failed to fill the va¬ 
cancy— 

Mr. TURLEY. They declined to do it for some reason, I have 
forgotten what. 

Mr. SPOONER. That is the worst possible case that could be 
conceived of. The legislature were not prevented by anything 
fortuitous; they were not prevented even by a contest factional 
in its character, as happens sometimes in these days, from filling 
the vacancy. So far as the record shows, they simply declined to 
fill it. 

Mr. TURLEY. I think there was some misconstruction of law 
there. They considered they did not have the authority. 

Mr. SPOONER. And when Mr. Smith’s term expired the legis¬ 
lature having met and having had an opportunity to fill it, and 
declined to fill it, the governor appointed him. Mr. Smith was a 
very sensitive man, and wrote a letter to the Senate. He was not 
willing that the case should go sub silentio; he was not willing to 
present himself to be sworn in without presenting that question 
and that status to the Senate; and here is a statement of the case 
made by Senator Butler, who was a very able lawyer, showing 
what the question was before the Senate. He says: 

His office expired by constitutional limitation on March 3, 1809. It seems 
that the legislature of his State had been in session before that date and that 
the legislature had forborne for some cause or other, I don’t know what, to. 
fill the term, and did not in fact fill the term as one to commence from the 
4th of March. 1809. 


Thereupon Mr. Smith wrote this letter to the United States 
Senate: 

Washington, May 29 , 1809 . 

Sir: The legislature of Maryland having at their last session declined to 
appoint a Senator to represent that State in the Senate of the United States 
from and after the 3d day of March of the present year, and the executive of 
the State having conferred on me the honor of an appointment, which, in 
conformity to the Constitution, was limited in its language to the next meet¬ 
ing of the legislature of Maryland, I have to state to you, for the information 
of the Senate, that this meeting will take place on the 5th day of June, as by 
the governor’s proclamation will appear: and I have therefore to request 
that you will be pleased to lay this case before the honorable the Senate for 
their determination as to the question whether an appointment under the 
executive of Maryland to represent that State in the Senate of the United 
States will or will not cease on the first day of the meeting of the legisla¬ 
ture of Maryland. 

SAMUEL SMITH. 

Mr. TURLEY. Then he asked- 

Mr. SPOONER. I know the other question was involved also as 
to when the temporary appointment would expire; but upon that 
4115 




40 


statement of fact made to the Senate, on the contention of my dis¬ 
tinguished friend, he was not entitled to hold his seat for a mo¬ 
ment; and yet that Senate, tilled with good lawyers, men living a 
good deal nearer the time of the adoption of the Constitution— 
1809 this was—than we live, did not regard that at all as affecting 
the governor’s right to appoint or as warrant for challenging 
Senator Smith's right to a seat. 

Mr. TURLEY. Undoubtedly. As I stated, the Samuel Smith 
case is undoubtedly a strong and direct authority for the proposi¬ 
tion that where a legislature whose duty it is to fill a term at its 
regular commencement fails to do so the governor can appoint. 
The Tracy case is of the same authority, and there are half a 
dozen other cases between that time and 1825 to the same effect. 

Mr. SPOONER. If the Senator will permit me— : — 

The PRESIDENT pro tempore. Does the Senator from Ten¬ 
nessee yield to the Senator from Wisconsin? 

Mr. TURLEY. Yes, sir. 

Mr. SPOON ER. I did not understand the Senator as saying 
that after the legislature had met and had an opportunity to fill 
an anticipated vacancy and forebore to act, that the governor, 
when the vacancy occurred, might fill it. He has said that in the 
Sevier case, where the legislature had no opportunity to act be¬ 
cause they did not know of the expiration, and in other cases, 
which might be supposed, where they had no opportunity to act, 
the governor might appoint. Here is a case where they could 
have acted and simply declined to act. 

Mr. TURLEY. Mr. President, the Senator misunderstood me, 
or else I misunderstand him. I certainly do contend now, and I 
say that for seventy-five years—and I will show a little more in 
detail that the authorities sustain me—if a legislature has had an 
opportunity to fill a vacancy, just as it had in the Smith case, the 
governor has no power to appoint; and I say, under the decisions 
for the last seventy-five years. Smith was not entit.ed to a seat in 
the Senate; 1 that Tracy was not entitled to a seat in the Senate, 
and that half a dozen other Senators, who were admitted down 
to 1825, were not entitled to seats in the Senate. 

What I mean to say, and what I intend to impress upon the Sen¬ 
ate, is this: That the Senate when this question came up originally 
adopted the view we contend for; I mean in a case where the leg¬ 
islature failed to fill a vacancy at the beginning of the regular 
term. The holding in the Johns case, which was decided only a 
year or two after the adoption of the Constitution, when there were 
five members of the Constitutional Convention who were members 
of the Senate, was exactly the opposite to the holding in the Smith 
case. In the Johns case just such an appointment as was sus¬ 
tained in the Tracy case and in the Smith case was held invalid, 
but the Senate changed the rule in the Tracy case, and in 1801 held 
that where a legislature whose duty it was to fill a regular term 
at its commencement failed to do so, the governor might appoint, 
and that principle prevailed down to 1825, when the Lanman case 
comes. 

The Lanman case was a case identical with the Smith case, 
with the Tracy case, and with the Johns case, practically. In the 
Lanman case the Senate went back again to the original doctrine 
affirmed in 1794 in the Johns case, and has never departed from 
it since, but has held to it every day since. That is what I say. 
I do not say that Senators have not been admitted here where the 
4115 



41 


legislature has failed to fill a regular term and the governor then 
appointed, but I say that was the original doctrine. It was 
shifted from 1801 to 1825, but for seventy-five years, since 1825, it 
has remained as we contend for, and as it was established in 1794. 

I will take this case: Suppose a Senator is elected and comes 
and qualifies on the 4th of March, 1900—such a case as we have 
here—and he dies in April; the governor does not make any appoint¬ 
ment; the legislature meets and fails to fill that vacancy. I say 
there never has been a case since the Government began where 
the governor was allowed to appoint under such circumstances 
as those. 

I say, further, that there never has been a case since the foun¬ 
dation of the Government where the vacancy occurred while the 
legislature was in session where the governor has been allowed to 
appoint—not a single case. And there never has been a case since 
the foundation of the Government, as I repeated just now, where 
the legislature has had an opportunity, after the vacancy oc¬ 
curred, to fill it and failed to fill it that the governor thereafter 
has been allowed to appoint. 

Now, in the case of Mr. Quay, the case here, the vacancy oc¬ 
curred during the session of the legislature. The legislature after 
the vacancy occurred had ample opportunity to fill it and failed 
to fill it, and the governor has attempted to appoint. I say it is 
impossible to find, searching these cases from beginning to end, 
any precedent which will sustain it. On the contrary, the prece¬ 
dents are all the other way, and I say this, to sum it up: Take these 
cases for seventy-five years, and while they may vary in detail and 
vary in some special facts, they establish this general, sensible, 
uniform, consistent construction of the Constitution, that wherever 
the legislature, either before orafterthe happening of the vacancy, 
has had an opportunity to fill it and has failed to fill it, the gov¬ 
ernor can not appoint. 

That has been the doctrine for seventy-five years without varia¬ 
tion. and it is consistent with the paramount idea which appears 
in this clause of the Constitution, that the framers thereof in¬ 
tended that the legislature should choose the Senators and that 
the governor should never appoint except in special and particu¬ 
lar cases where the legislature had had no opportunity to choose 
the Senator. That is a consistent rule, which can be found from 
these cases for the past seventy-five years. 

We are the judges here on this question, Mr. President, just as 
much as judges who sit in another part of the building. This is 
the only body that can construe this clause of the Constitution. 
There is no other tribunal under the sun nor on the face of the 
earth that can construe this clause in the Constitution than the 
Senate of the United States. Are we in 1898, when Mr. Corbett 
was knocking at the door of the Senate, to say that that clause of 
the Constitution means one thing, and in 1900, when Mr. Quay 
comes knocking at the door, to say it means just exactly the oppo¬ 
site? 

Let me call attention to one thing. No man can say, and I sub¬ 
mit it to every Senator on the floor, that a vote for Mr. Quay and 
a vote against Mr. Corbett are consistent votes. A man might 
have voted for Mr. Corbett and vote against Mr. Quay, because 
there was a question of the organization of the legislature in Mr. 
Corbett’s case about which there was grave doubt. 

Mr. PENROSE. Mr. President- 

4115 



42 


The PRESIDENT pro tempore. Does the Senator from Ten¬ 
nessee yield to the Senator from Pennsylvania? 

Mr. TURLEY. I yield. 

Mr. PENROSE. There were several Senators who voted for 
Mr. Mantle and against Mr. Corbett. I should like to know from 
the Senator from Tennessee how they reconciled their consistency 
upon that matter. 

Mr. TELLER. Mr. President- 

Mr. PENROSE. I suppose some technical difference will be 
presented. 

Mr. TELLER. I am one of those who voted for Mr. Mantle. 
There was an extended discussion here on this question. I made 
a speech, and while I did and could very readily distinguish the 
cases from New Hampshire from that case. I announced my in¬ 
tention to vote for Mr. Mantle. I said I regarded it as a very 
close legal question. There had been some very strong arguments, 
particularly by the Senator from Oregon, Mr. Mitchell, against 
the power of the governor under the circumstances to appoint. 

I stated then that I thought we sat here as a court; that it was 
a judicial determination, and that in all decency whatever the 
Senate should then determine I thought it ought to adhere to. I 
then stated my intention, if the Senate voted that the governor had 
not the power, to govern myself in the next case and all following 
cases by that determination of the Senate. 

When Mr. Corbett’s case came here, which was a stronger case 
than this, I am very certain, I felt that under the ruling the Sen¬ 
ate had made, which had not been made upon party lines, because 
w r e had not divided either as Democrats or Republicans, men vot¬ 
ing in both directions, I may say, some Democrats voting for the 
power and some against it, some Republicans voting for the 
power and some against it, I felt that the Senate had made an 
•adjudication, and as a lawer I thought 1 was bound to stand by 
that adjudication unless somebody convinced me that the public 
interest required me to vote for its reversal, as sometimes a court 
does. When Mr. Corbett’s case was before the Senate I made 
simply the kind of an explanation I am making now. I said I re¬ 
garded the case as settled; that I regarded it as an indecent thing 
for the Senate of the United States to vote one man in and an¬ 
other man out. 

Mr. President, upon that line I intend to govern myself in this 
case. I intend to vote exactly as the Senate voted on those two 
cases. I can find ample justification. myself for it upon the doc¬ 
trine that it must be finally determined, and upon the f urther idea 
that the American people can not look with any respect upon a 
body which one day votes, on conditions practically similar or 
more in favor of the applicant, that he is not entitled to his seat 
and on the next case votes that the man is entitled to his seat. 

Mr. TURLEY. Mr. President, I have but a few more words to 
say. The Senator from Colorado has expressed a great deal of 
what I had intended to say in conclusion. I can only call atten¬ 
tion to the fact that the Mantle case occurred after the New Hamp¬ 
shire cases, which may not have been thoroughly understood at 
the time, and since then the Mantle and that class of cases have 
been followed by the Corbett case, and thus reenforced by addi¬ 
tional authoritj 7 . 

This is a question which has been debated in the Senate for 
years and on many different occasions, and about which trained 
4115 



lawyers and learned Senators have disagreed. When is it going 
to be settled? We have, as I have shown, precedents of seventy- 
five years’ standing which say that Mr. Quay is not entitled to his 
seat, and if a case could be picked out in which the governor did 
not have the power to appoint under all the i^recedents and under 
all these decisions, this is the case. 

Now, are we going to reverse this rule and be at sea again, so 
that when the next appointee comes here under like circumstances 
we will make the fight all over again? It seems to me the digni¬ 
fied and wise course to pursue—the one which the Senate ought to 
pursue if it expects to retain the confidence of the country and 
not to have the country believe that it is guided in its decisions 
either simply by political considerations or personal favoritism—is 
to stand by the long line of decisions which have already been 
made and which will fully justify its course. 

I ask the pardon of the Senate for trespassing upon its ti^ne so 
long. 







0 028 001308 2 





